*1 APPEALS, IN CASES THE OF COLEA People. Lemmon v. to tell a man. has been condemned tha-I who mockery unjustly will that he feel, redress is a He and ever hat- feels, his pardon. an incurable from sword which com he, wound received into the hands of his had citizens, mon fellow with put their for magistracy protection.” in the court below one The case made was appealing very of that tribunal trial grant to the reason new strongly court before no fault of the from was certainly A that the trial resulted defendant tried conviction. concurred number of unfortunate circumstances presenting defence, him without before substantially jet jury them, there thu-s unaided unshielded before war standing him of the crime hesitation jury convicting evident that on another reason of murder. There believe every if not will, excused, laid to his trial the crime charge greatly it is due to I think comparative eminently mitigated. “ as he has institutions—this been waif,” to us our stranger “the central our cast shores called, .appropriately ”—that he should one more opportunity kingdom iEowery if cannot of his he suc- offence, the extenuations even to show himself crime. ceed wholly purging order of the the writ I think the term granting general should he the order of reversed, Oyer .prohibition trial affirmed. 'Terminer new granting affirmed.
Judgment Lemmon 1841), eh. 20, part as amended (tit. 7, Revised Statutes cZi. into person formerly held a slave who is introduced every free render voluntary by the act or consent his master. this State brought fugitives from service but operation upon have this slaves not They another, of transit from one slave State in the course into this State any longer remaining the master of part intention on the without his journey. find the opportunity pursuing than is "necessary MARCH, ALBANY, 1860. *2 People.
Lemmon v. The applies terms or construction to the the statute its case of Whether a which has coasting on board of vessel been driven within slaves the of by of stress weather or other navigable this State marine waters casu- alty, quere. may Every except power by express have limited has compact, regulate the exclusive to determine and the status or social and civil any all at’ persons jurisdiction. condition of who time be within its principles comity applied The of nations or are determining such presumed political government status from consent of the they legislative State where are invoked. When the power has declared judicial its will upon subject, obey tribunals are bound to its di- rections unless are conflict Constitution of the United States. recognizes The Federal plenary Constitution power exclusive of the by the express States this limitation particular, thereof in the case of fugitives from service. subject adoption provision The of the on that is evidence of the understand- ing of compact to the that in its parties absence a even fugitive a emancipated reaching be free upon State; merely by would force of prohibiting positive laws but for slavery, want law subjecting him to a condition abhorred the common law and the law of nations. A free if would slave become voluntarily brought his master fortiori into a free State. respect fugitives beyond The clause in to does not extend the case of the owing of one in one escape actual service State to another. that provision Constitution, The Federal the citizens of each State all privileges shall be entitled to immunities of citizens in the several of Virginia, irrespective to a citizen of his presence secures or ab- others, pertaining and no to sence, rights, same citizen of this State him to the same quality, subjects in that disabilities. him simply to relieve from disabilities of alienage Its effect and to prevent any legislation attach, would otherwise discriminating advantage of natural but it against citizens, him does not enable legal institutions, to another State the carry him injo them, primarily he was a citizen. the State of which infringing upon not void the power this State is statute of Con- commerce between the States. seems regulate (per gress Wright, the action of the that several States to Js.), Bacon Welles, Davies, limits from their cannot controlled Congress slaves under exclude by the power conferred Constitution. But if Congress regard subjects as the commerce, has regulate transportation, their sufficient assumption (per J.) Denio, regulate has not undertaken to Congress commerce between the than when carried on wholly by otherwise coasting land States state legislation of federal present and that does not raise any vessels, of this State. it and between conflict THE OF CASES IN COURT APPEALS. -
Lemmon t>. from Accordingly, brought Virginia to New York and there by sea, embarking upon landed with the intention new voyage Texas, thereby made free. Appeal On the No- Court. 6th Supreme day a colored citizen of this State, Louis vember, 1852, Napoleon, a sufficient and affidavit made application upon petition Mr. Justice Paine Court New city Superior for a habeas to be to one Jona- directed York, writ corpus street, than Lemmon and of house No. Carlisle keeper them said York, New before justice bring *3 requiring and of one man, bodies colored two women eight persons, re- on the confined and who were children, day five preceding of on of Rich- strained their board steamer liberty City of and taken therefrom York, in the harbor New were mond, and there de- that No. 3 Carlisle street, on the of night day under that tained were slaves. they pretence on the same one The writ issued, day accordingly col of of New York brought eight constables the city up their Christian ored known only by who persons, appeared as Robert, Lewis, Amanda, Ann, names Emeline, Nancy, Lemmon made a to the under writ Lewis Edward. retprn he that named averred were (cid:127)oath, eight persons of Juliet Lemmon his had slaves who wife, property for been of such she owner slaves persons several years, of and citizen of resident State service Virginia: being labor as due them under the Constitution slaves was “that the said slaves, of with said Virginia: Juliet, her or from the or transitu transit State now property, persons ultimate Texas, to the State of of aforesaid Virginia place and another State of United of destination slaveholding of and that so on her in transitu she America, States was way aforesaid or or transit when the taken slaves were eight persons her or under the of cor from writ habeas custody possession * * "x" * “that the said had in Juliet never pus:" any of the said or into the tention slaves State of bringing did therein, and that she York to remain them bring New manner nor for State whatever, into said purpose
ALBANY, MARCH, I860.
Lemmon transitu or transit from the of State afore Virginia except of York, or harbor on board said New through port their of Texas destination, State steamship place that the said as such of the aforesaid Juliet, aforesaid: owner at the time or taken her were persons, aforesaid, de of habeas and she corpus, thereby writ them through them, possession passing prived said she York, harbor New where was compelled on her to touch land, without, remaining part, necessity ” * * * “that to remain than intending longer necessary: the said from the in the Norfolk slaves, sailing port on board of Rich said State Virginia, steamship City landed nor came into the harbor or mond, never State touched, for the mere and tran York New except purpose passage sit from the Virginia, aforesaid, Texas, and for no other aforesaid, intention, purpose, object design her the said Juliet with said com slaves was whatever: or accident to take necessity passage steamship pelled by from the aforesaid before named, of Richmond, port City for the State of Texas aforesaid, Norfolk State Virginia The return also denied the ultimate of destination.” place *4 Lemmon or her sell husband, on the Mrs. intention, part ing negroes. demur-
To this return the relator general interposed orally until the case under Mr. held advisement rer. Justice Paine the colored he discharged when November, 1852, the 13th Virginians. from the of certiorari out a Supreme
Lemmon sued writ at term general were reviewed Court, where proceedings order of Mr. Justice was in the first and the district, Paine to this court. Lemmon December, affirmed in 1857. appealed O'Conor, Charles appellant. York could of New rightfully, so far as
I. Except her sove- restraints imposed transcending and without status States, forbid the of the United the Constitution reignty 566 IN THE OF CASES COURT APPEALS. v.
Lemmon Tlie her borders of an exist Afri person of slavery in so far as she has, or fact, except expressly can negro, it actual an African forbidden legislation, negro impliedly in that in this condition 1. held State. be lawfully may of this or common State authorized ancient law general as slaves therein. never had judiciary holding negroes or constitutional set aside this annul, law; -any repeal it force of some enact and, consequently, positive our ter ment that one into legislative coming authority loss in his could lawful suffer any ritory possession In as his diminution of his title to them property. (1.) of court, judge argument opinion known judgment, every it is in admitted some form, or counsel subject, relating muni an existed under the that at negro slavery early period in each one the thirteen States which original cipal formed declaring independence Republic, by means it had its Constitution 1789. what By adopting insti establishment them an its first reception not be law, traceable; tution sanctioned by historically ¡New all of if not most, them, York, certainly statute time recognized by was when the expressly prior asserted their States themselves independence. (28 October,1806, 29 69; October, id, 157; Colonial Laws, Schaick's Slave Van Jack Y., 8, 1773; Martin, N. March 12 Wend., Act 328; Conn., 12 Commonwealth Bulloch, 42; id., 61; Jackson v. v. Aves, Scott v. 19 209; Pick., 208, How., 407, Sandford, 408; 5th, 20 State Per Trials, Hargrave's Argt., point 60; McLean, id., Pet., 660; never was a (2.) ¡Negro J., slavery law of England, municipal consequently part first thence colonists. Nor did not imported they adopt or other domestic villenage permanent any system had kind ever existed been England known *5 that the laws usages kingdom. They to or regulated by race of the free white and in a so men; homogeneous were of such of its mem own persons, slavery composed ciety nature mental and endowed bers, physical equality, an sense of Of enlightened ever repugnant justice. must 567 MARCH, ALBANY, 1860. v. that not suited to it, it was abhorred saw colonists course, emigrated. them when they left it behind arid their condition Don v. 2 19 Wheaton 18, ; Ch., and Student (Doctor Dialogue, 1 Kent Pacard, Pet., 444; 2 Ness v. Van 659; 8 aldson, Pet, Cobb's Farmer, 9 Neal 1, 17; N. art. v. Y., Const. Com.,373; § nor bondage neither As political 562, Geo.R., 578.) (3.) fraud and violence the domestic European by had a foothold legal his white brethren ever imposed upon inflated speeches these now occupied territory and orators touching'The'ptnity and British Erench judges whateveirotker countries, air soil of tkeir respective serve, to the triey inquiry irrelevant altogether purpose what was the law of this Union on sub Trials, A. 20 State ject D., 1738, negro (French Eloq., slavery. 11, note; English A. 2 Ld. Eloq., D., 1762, Eden, 117, NORTHIN Id., Id., 1771, Bl. 20 State GTON; 1765, 1 Com.,127, 124; Trials, note; 1 Ld. Mansfield Scotch Irish ; 1778, id., Eloq., Eloq., Rowan's criticism in Trial, Curran; McLean’s Judge Scott, Dred Lord How., 535; criticism, Hagg. Stowell’s Ad., argument against negro slavery 109.) only {a.) found in the at for a forum judicial cases all suitable English rests that it law. English historical fact was unknown that white case, Mr. in Somerset’s showed Englishmen Hargrave, of that alone slave laws were subject municipal country at institution which it time; was new negro slavery 55; Trials, introduce. (20 required legislative power Mr. Justice Lord Holt Com. Aves, Pick, (5.) for the Mr. were high authority proposi Hargrave’s Powell white recognized whilst common of England tion that and the right them; slaves villeins property English That a man notice of a white might it “took no negro.” yet “that as soon as a be a villein in comes England,” negro he became free.” It negro nto England liberty Erench .’aw established. know-nothingism English and enfranchising purity not its true air had Erench English had nostrils of a White negro. till drawn through (Smith all affected. their at status longkespired' being without *6 568 CASES IN THE COURT OF APPEALS. v. The People. 2 20 State Brown, Salk., Trials,
v. 666; Lord note.) (c.) “ said in Somerset’s The case, state of Mansfield that it is of such a nature introduced on incapable being any but moral or reason, political, only by positive law,’’ negro ¿ver philism raptures has been with him since. NevertEe a bald less truism. inconsequential might equally said new thing well known recognized law. 3 J. (Per J., R., The existing judici Ashhurst, 63.) (4.) had never set annul, aside ary power slave law repeal we this State which have shown existed with the sanction of Revolution, Judicial tribunals Legislature prior (a.) in this are country part government, by genius words institutions, our of our very fundamental restrained from exercise of the charters, law-mak they That functiomis governmental to a assigned ing power. sepa this strict rate (i.) By govern department, separation we form and mental have given to a powers, permanency science maxim of politico-legal always acknowledged by law often English theory, though violated in sages For proofs refer to acknowledgment we practice, (c.) jus definition et judicial the habitual dare non power—:jus Eabdley the wise and learned Sir Jonathan Again, facere. “ Statute law common law says: flowed originally Wilmot same fountain—the from the Statute law is the Legislature. the common Legislature; nothing will law else but all our time; worn out statutes consent by begun by whether is now law usage Legislature; it is the same thing.” (Collins Blantern, Wils.,348; writing ’ This is sound but it doctrine; has often been Kent, 472.) from in In some instances the practice, (d.) departed depar been striking. ture has very legislative authority the celebrated Britain, 1285, sought statute de Great donis lands entailed inalienable. to make As far as absolutely plain of its direct expression will sovereign the su could have law-making preme effect, were inalienable. without a rendered judges, shadow of con contrived the absurd stitutional right, irrational fiction of ALBANY, MARCH, 1860. *7 People.
Lemmon v. The a common recovery, thereby virtually repealed statute. Bl. Per Com., 116, Ld. Ch. Burr., 115, J. (2 Mansfield; WILLES; Willes, governed was English legislature with our deem a we, what present lights, may pernicious by in to restrain in to tie it' tending commerce land, policy, up and to numerous hands, few draw into social operation evils. of estates unfettering English by judges, through devices which had its resorted, origin regard wise for the interests of the but in it was mere trick them, people; and rank Lord from his as So Presi usurpation. place Eldon, dent of the of at House when Lords, constitutional period law was better understood in England, pronouncing of judgment case leases (1 Bligh's Queensberry P. A. D. Rep., series, 435, “The 1819), says: power 1st in this judges be doubted. that respect may as Upon subject, I formed an applies law, have English opinion of this judges age would not have been England permitted rid of the get statute entails English of that judges did soon after the age the statute de passing donis. (38 Eng. L. and Those Eq., 444.) who failed (e.) lawyers have to per as Lord Eldon ceive, did, the necessity keeping separate professional -pride great government, whose departments knowledge than their of constitutional greater -¡nrisprri boasted dence, frequently tendency amongst English defeat what to juris-consults them judges seemed resolutions of the unjust legislative impolitic department. erred. Far better mischiefs They should exist supposed a time the ill-advised sanction of the by than Legislature that, by usurping powers granted, high priest justice should defile himself and the he officiates temple by the sin the fundamental willfully law. Error violating should not be combated error, crime, by by ingeniously fraudulent conceived devices and evasions, fair argu ment and remonstrance addressed to those open whom has invested with the Constitution sole orderly correction. An of this instance ill-considered self- legitimate be found the otherwise written admirably gratulation YI. Smith.—Vox.. CASES IN" THE OF COURT APPEALS.
Lemmon v. The Mr. counsel for the Somer-' argument negro Hargrave, before Lord Mansfield. The last set sentence that argu to be ment, sure, and, somewhat vaguely perhaps, covertly, astuteness of commends English judges circumvent the lord under English yillenage, which ing system undermined that of the ancient law of part they' gradually 67; Id., Howell’sState Trials, England. (20 27.) ¡Negroslavery Lidies was sanctioned numerous stat English W^st force in an much utes. This afforded argument certainly an held *8 of(cid:127) who English subject, favor permitting lawfully to in that of visit British-dominions, part temporarily his bondman. The was argument England opposed by it to the dictum overruled by was judicial pride; appeal usurp for his more tendencies of a much renowned judge - to diminish of than for inclination power making law any theUberty of prerogative or to defend his sub white fellow an of and osten of office, pride learning The jects. pride tenderness for the rather than any rights tatious vanity, declamation dictated loose enjoyments lowly, himself emanci negro he installed champion has no The declare right 2. judicial department pation. or the law or nature, immoral, to be slavery contrary negro or introduce for or to take measures any any policy unjust, founded such ideas. Courts au suppression any only to administer the thorized law. no Judges have municipal or enforce their notions of commission general promulgate natural which is the morality, justice, Doctorand Com.,448; of the land. Kent’s Stu (1 law known & 18, Ell., 13 Ad. ch., ; J., dent N. Dialogue, per Maule, law, In the forensic sense word there 3. 387, S., note.) as a of nature lawful no law bearing upon is such thing indeed jurispru upon question slavery," any ness of nature is mere sense, The juridical law every dence. if the existence of nature, In a state of speech. figure is no state be there in such a supposed, beings human his of an own resolves individual The prudential law. under the denomination of not come do law. government, ALBANY, MARCH, 1860.
Lemmon origin. wholly is sense, is social forensic Law, society and its itself members.' imposed upon restraint 1 Kent, 1 Bl. Com.,43; ch. 1, 1, 6, 7; B. Inst., (Rutherforth's § Justinian, 2, Int. 19; Cooper's Elements Law, Wheaton's 2; If on Public 405; Law, onward.) (1.) notes, Bowyer the forensic as a nature, there law such thing it must of absolute be law, paramount sense word Inborn with all courts climes, obligation ages, places. it him must control man, the moral constitution everywhere, de void vicious, every overrule corrupt opposing And cree or resolution of courts legislatures. accordingly the idle of others the sub repeating speech Blackstone, tells us that all the law over binding globe; nature ject, if and that no human laws are to it. (1 validity contrary as the Blackstone, 40, 41, 42, Yet, Wendell's andnotes.) judiciary at all times acknowledged negro England either sla a valid basis of follows that such legal rights, pot of the common practical judgment law, very, that such of na the law of or if nature, be, contrary no Inst., ture is of force in court. Bouvier's English (Acc. com Rev., Ed. Brougham *9 9; Apl. 235.) (2.) § the fetters of mon law whilst broke judges England, they into came that held slave who themselves negro country, of such enforce contracts sale bound purchase redress for done to slaves, give daniages that in them. This involves there proposition property courts could nature act which no law upon paramount 3 B. (Madrazo Willes, & Ald.,353; v. negro slavery. prohibiting Casescited in 666; 215; Brown, Salk., note, Smith Pick., 18 The 2 Grace, Hagg. Adm., Slave 51; Trials, 104.) 20 State of this courts England The highest country having (3.) international law, over public questions jurisdiction as slaves is not con bondage that negroes decided holding 10 nations. 18 (The Antelope, Wheat., 66; to the law trary Grace, Adm., 2 Hagg. 104, The Slave 211; Pick., 122.) (book tit. 1, 2, 2), in his Institutes Justinian When says § (4.) of nature, law that contrary elsewhere, slavery 572 CASES IN THE COURT OF APPEALS. The
Lemmon i>. means no more than that it does not exist he nature but it human is true of law, introduced which most if all His definition of rights obligations. the law of nature (b tit de naturali 1, his full 2) jure proves this; sanc ook tions of in book 1 2, tit. slavery (tit. 3, 8, confirm 1) it. § § on Public (Cushing's Domat, 97; Bowyer All Law, § 48.) (5.) or enforceable as rights, cognizable such in perfect tri judicial exist bunals, of that State or virtue law only by country pro which claimed or asserted. The idea of whole compact. perty arose from has no It origin law nature as in the court below. Ruther supposed (5 711; Sandf., book Inst, ch. 1, 3, 6, law nature (6.) 7.) §§ forth's spoken writers, if has im law phrase any practical policy morality means that notions of port, leads obligation, each nation to recognize of universal which it itself as it therefore so far enforces and, observes may, others. It cannot be there ever was pretended England, or that there State of this Union, law, now by any The common thus of all name, outlawing negro slavery. countries has as the basis of these indi regarded always and statute all of them recognized vidual rights; 2 (The Grace, enforced it. Slave Per Hagg. Adm., 104; Shaw, 2 215; Kent, 2, 3; id., 2; Ch. Civil J., Pick., Wood's state on earth can Ho civilized maintain this Law, (a.) 2.) for in some of its absolute forms negro outlawry slavery; in all and no has existed ages; lawgiver paramount condemned it. has ever (Cooper'sJustinian, notes, authority book Per Ch. 6 Ohio N. 3; J., S., 724; tit Inst., Bartley, been determined has never Senator Benjamin, (6.) other tribunals of any any right, judicial country the mere fact of its loses its claim wise protection by perfect, on the of a founded slave. negro being ownership (7.) *10 that freedom is the rule and general proposition has no foundation local view the any just law exception, is the distinction as a science. taken groundless Equally between slave other movables. Judge property Paine not bv neither Property does exist nature, movables is (a.)
ALBANY,MARCH, 1860. v. of nations touching acquisition common law there any Public Law, on Universal (6.) Every (Bowyer 50.) transfer. an in some ...law. That must have origin title- movables municipal place of the law in and is origin always se extra has ver and such law never it is acquired, where operation, with with movables, When territorial (c.) of their come within owner, country out the presence them it the title to that under acquired, than whose it far take latter State how will on the of such will depends and its owner, such notice of and property recognize, quoad It Earle, Pet., law. (Bank Augusta (d.) foreign nations to re civilized has become a universal among practice as it be far such so may specially law cognize foreign except to an This amounts between agreement usage proscribed. the idea of so-called of’ and hence nations, property nations, Hence it be seen African will property (e.) rule. rational is not an general Upon exception negroes than other local or it is no more peculiar property. principles, about no is so much of And there civi universality denied all could absolutely legal lized State country is no there 4. In fact violation principles protection. from the dictates of nor justice any departure enlightened in a state of in holding negroes slavery. benevolence pure cannot exist white, black or whether Men, ordinary (1.) than in the otherwise social reasonable comfort safety and unaided alone state. Negroes, guardianship (2.) state, social This another cannot sustain civilized race, (a.) an for its or de assertion does support require proposition human Noah’s race, application nial unity that time has or the Geo., possibility malediction (9 582), physical change Ethiopian’s again changed negro view necessary moral nature. (6.) undeniable that the truth, and to credit is, palpable he thousands of years. cannot latter phenomenon haPPen- (Fac this is perpetuity. For all the ends jurisprudence has sus never The negro Latin Lexicon ciolati's Aethiops.) (c.) that he can never social organization, tained civilized *11 CASES IN THE COURT OF APPEALS. v. The People. manifest is proven history. rapid sufficiently toward the profoundest gradual retrogression Hayti though and barbarism. (McCulloch's of destitution, ignorance depths vol. 24, De Bow's Rev., 203.) That, 693, 694; (<£) Geo.,Hayti, he can sustain civilized social alone and never unaided, minds the fact that is to all reasonable organization proven attained of his race has member never proficiency one single intellec high art or science requiring employment A the standard qualifica tual below mediocrity capacity. for duties of guiding tion for the government, important sciences, or for abstract affairs of progress may society, it is of other races; in individuals universal be common has risen Hot one ever above single negro amongst negroes. book Literature Geo., 59, 8; Gregoire's Brun's it. (Malte It fol vol. 83, Univ. Supt., Gregoire.) (e.) Negroes; Biog. of reasonable to obtain the measure that in order personal lows to himself and others which and of usefulness enjoyment remain a state of must nature, negro he adapted under, of some other' race. He the government (/) pupilage he In cold climates a child of the sun. perishes; alone his to his and which race labors, territories adapted he not toil be will save compulsion, can perpetuated, can his man but each cannot; perform appointed white man can can white labor, task—the negro govern. or those dictates of reason which enlightened (3.) Morality, sometimes been called the do not nature, oblige man another an to serve without for the reward equivalent rendered, form no ex obligations service (a.) charity to those to this rule. service enjoins Charity gratuitous ception it is not due to indolence. are unable sturdy who repay; and Student ch. universal (Doctor Dialogue, (5.) of mankind concedes voice parent profit him from the services derived pleasure minor child as due return for his guardianship nurture, shall the claim of the intellectual Who deny (c.) for the toil of to its mental race compensation white governing laborer ? The learned and skillful negro and guiding
ALBANY, MARCH, 1860. *12 v. The
Lemmon People. or other expert soldier, preacher statesman, physician, holds domi mind exertion where of human great department and surrounded is clothed with matter, power, nion over luxuries, of mental for physical materials enjoyment and attainments. to the measure his capacity in proportion of the mechanical and And at agricultural all is the cost If the are denied. social to such laborer, enjoyments whom natural individuals in the different capacities founded order, is these in the same inequalities, family, produces of the like condi inequality can say who unjust, rightfully is to tion races differing contrary between capacity, to it race conform or that the who a law nature, governing a fraud or that commit violence are they rapine, guilty “Honeste is forbidden ? (4.) to reason which morality are et all tribuere,'’ alterum non Icedere suum vivero, cuique honorable of the moral law. The slaveholder keeps precepts as as other member of human them society. perfectly book 1 3; Com., tit. Bl. 40; Georgia, (Inst., § and the cruelties vicious owners horrors (a.) the.slave trade It is universal ex irrelevant. quite topics that wealth and afford occasion for power develop perience as ment of man’s evil but are also the ne propensities; they of his cannot be called means evils cessary improvement, nature, of mind, in their tone which, own arrogating (b.) itself of life and a moral tone than in higher superior purity the then state of could be existing knowledge have supposed existed at Cana among marriage Galilee guests as a total abstinence from ch. (John, enjoins, wine, duty, ii), in the of a and moral excel well kept assumption political up reach of our and the sires, lence mental consequent beyond for an immediate Cer negro demand abolition slavery, (c.) too been much tain anti-slavery assumptions agitators and conservative. Ch. J. moderate, indulged peaceful, their let uncondemned Maeshall irrelevant pass triviality of nature Pet. Cond., 36; Wheat., about the (6 114), Taney concedes to them that race, Ch. J. negro merely “ unfortu- because denied be regarded political rights, IN TIIE CASES COURT OF APPEALS.
Lemmon v. The ” 407), nate” (19 How., (id., The fathers “unhappy 409). when Eepublic, forming league, face temporary of the foe and on the Cush., eve battle (7 declined 295), all and discord about peril upon scruple delay inserting an word (19 How., when compact unnecessary 575); ” “ those to an has sake inch been thus whom con- peace on the “take an ceded,. ell” proceeding principle, demand, consequence must precedent, we destroy, all withdraw such concessions back go principles. II. The unconstitutional resol revolutionary anti-slavery *13 ution1 of 1857, cannot retroact affect so this case. April, (Vol. 2, 797; 45, Westminister vol. article Man Review, 76-98, to that Prior no act of time, this Destiny.) State legislative ifest had ever declared to breathe our air or touch our soil should work nor had statute ipsofacto; been emancipation enacted its true denied to our which, fellow interpretation, citizens of other an transitus States our uninterrupted through their with 1. The negro slaves. territory injunctions special and of the Federal Constitution secureto guarantees citizens States intercourse all several free with parts Eepub lic. 2. Even inter-state in its comity, form, awards simplest free transit to members State with their families friendly and without disturbance their rights domestic property, relations. 18 and cases (Curtis Arg., Pick., 195, cited; Paine, 5J., Sand., 710; 4 McDougallArg., Scam.,467, 8. What 468.) others no ever American can do, may judge pronounce an to this rule exception general property ground American citizen immoral unjust. Every slavery it as the Constitution of the United States bound regard taint affect its claims free from moral which could being so legal recognition protection, long of the Federal Union shall it. uphold (1.) provisions for its cannot otherwise be can Constitution kept protection faithful In this Christians dor faith. good spirit, (2.) IN [1] ANY -The FORM OR people UNDER ANY this PRETENCE, will OR FOR Joint Resolution allow ANY TIME, of April 16, HOWEVER her SHORT. borders 1857
ALBANY, MA11CH, 1860.
Lemmon v. The honorable all contracts. Por even unbelievers lawful (3.) keep tia’s mode of act scene Venice, (Merchant 4, keeping promises is allowable the form of con 1), respect pacts having in law tracts, of no force or obligation binding or morals. The American Shak citizen, who, applying (4.) carries in his illuminated doctrine, bosom a speare’s chapel “ law,” devoted those infernal Evasion higher deities, com Circumvention, be if the constitutional justified may be if it and con void; but he honor valid, violates pact science. that his are too be, devices subtle however, to be reached ingenious sanctions. (Last by ordinary legal sentence in re 1 Park. Kirk, Cases, Cr. 95; Commonwealthv. L.7 Fitzgerald, R., Sim's 1 R. 379; Case, Cush., 298; 657, S., . ) §§1,16 III. The act of March 31st, as revised 1817, 1830, even modification of its effect of its wrought by repeal in 1841, does not understood, such exceptions rightly deny (Laws 1817, 9, 16, passage. 17; §§ Laws R. S.,656, 1-16; 1. The 1841, 227, words §§ § “ imported, introduced, into unless ex brought State,” tended construction far their do not *14 beyond import, apply to the mere transitus of a of citizen of a slave, a custody State his slaveholding being when owner, quietly passing this State on through lawful occasion and without unnecessary delay. 1817, 9; Laws 136, 1841, 227; Opinion {Laws § of of in this case, 5 Sand., The of act 1841 716.) repeal (1.) by of the special privileges given sections 3-7 inclusive act in the 1817, view most adverse to the slave owner, left the words merely introduced or “imported, into” brought to be to their applied natural according without those import sections. So construed would not extend to a mere car " “ the State. The through word into rying differs in mean from ing the word “within” as used in the legislation and marks the 1857, characteristic difference it and between that of It is 1817. (2.) impossible legislation give 1817 effect comprehensive which was designed by treasonable resolution of 1857. All admit a will fugitive
Smith.—Yol, VI. 73
578
THE
IN
COURT OF APPEALS.
v.
be
found
carried
Vermont,
from
Virginia,
an extradition certificate. This
New York under
back through
the State was not,
would seem
carrying through
prove
into
State
bringing
Legislature,
judgment
J.,
of the act of
by Story,
within the
1817.
meaning
(Curia
Pick.,
16
Curia
18
624;
Shaw, J.,
Pet.,
224.)
cannot,
violating
IV. The State New York
without
of a sister
United
restrain
citizen
Constitution
her
his
territory
with
passing through
peaceably
to a
sla
on a lawful visit
State where
property
“
has
allowed
law.
regulate
very
Congress
power
(1.)
commerce
States
nations,
several
foreign
among
8,
and with the Indian
U.
art.
subd.
tribes.” (Const.
S.,
3.)
§
so that no
This
in Congress,
exclusive
power
absolutely
(2.)
State can
enact
commerce
constitutionally
regulation
between the States
has exercised
same
whether Congress
matter
or left it free. (Passenger
over
question
How.,
Cases,
R., 572;
J.,
400;
7 How. U. S.
7
per
per
McLean,
and the
Court, How., 410, 411;
7
J.,
per
McKinley,
Wayne,
y
Y.N.
v.
11
J.,
J.,
Miln,
nities of 4, citizens several 1) § affords the citizen peacefully through passing a from disturbance as such another, immunity 'review., from order under 1. This suffered now plaintiff if it its and beneficial effect section lose much of force would citizen travel construed to secure to non-resident were al as such State a such “rights” State may ing through only him Its object to its own citizens. exempt low is him it. Class legislation not to subject (1.) power, A State grievous legitimate. may impose deemed perfectly classes, on its citizens say.those burdens own particular a under of German over or origin, birth, parti foreign where, cular owning pursuing particular age, an establish law. Per agrarian &c. may occupation, of its male penalties upon any Utah visit might heavy haps air or its soil touching citizens for with breathing pure pure an Amazonia arise wives; at six out least among having a rule in the and exhibit such feminine gender. our new v. Wend., 15; Pet., Brown 6 Brisbin, Maryland, (Frost Under a construction of this Cond., policy 562.) (2.) could all States slaveholders the non-slaveholding pen up kind, as as himself States effectually their own within this, This case. cannot the rule applied confined by conceded., 2. The 461, sec J., How., Grier, 464.) be (per The Constitution thus narrowed. recognizes is not tion “citizen United States” character well the legal subd 1, 3, 3; State. art. (Art citizen particular § latter term refers domicil; subd. § of a State is a citizen citizen United particular every of this section is to object And secure the'citi States. which he domjciled, when zen, ature, immunities which, ve ry-T general privileges MARCH, jANY, 1860. AI* *17 Lemmon People. the Federal Con as established by recognized
citizenship, that no status; so partial stitution, belonged a he into might go of a State which adverse legislation a a can he be them. or deprived stranger sojourner harmonizing provision curb set State legislation to the non of the federal which extends aegis judiciary him citizen in all and the citizens resident controversies between in of the he (Art. State which sojourning. temporarily This like section, 3. 3, 2; J., How., per 580.) § Curtis, in the brother judicial article, applies only stranger. The moment a citizen of from his Virginia, ceasing journey, sits in down York the intent of State New without leav or makes, the reasonable halt ing, fact, any stay beyond a he becomes a citizen of York, New wayfarer, relinquishes all from benefit these of the important guaranties Federal Con stitution. of civilized nations, By comity 4.. stranger a allowed pass through without friendly territory molesta tion. are Even allowed their armies belligerents pass over a neutral book ch. friendly (Vattel, territory. 3, 7, 119, 127; §§ book Vattel, 2, ch. 8, 109, ch. 110; 132, 133, §§ §§ This before between the comity, existing States, was converted the Constitution into an absolute citizen. the section the citizen of quoted each State is By se cured all the and immunities general privileges of a citizen of the United States whilst temporarily necessarily a State than his domicil. ofOne these is to be free from all burdens and taxation whatever; for, upon general taxation is principles, residents or imposed on deal another is ; to be free ings from local class legislation, as a he cannot be a member of wayfarer any body or organized, defined as a governed class under the State law “ ” The words and immunities privileges here used essen tially, though in a perhaps sense. The exclusively, passive is not object States to compel give the same strangers “ ” which rights award to their own but to citizens; exempt stranger burdens, obstructions of kind. To transitu, his vessel his stop carriage off his ne- carry APPEALS. OF cases IN THE COURT 582- v. of his as his servant—recognized gro property by manifest invasion State and Federal Constitution—is own “ under and immunities.” 5. of his Comity, just privileges nations towards friendly practice stood speaking has international law, has denominated been each other, Union, relation no between States place some illustrate, cases, except occasionally, particular remote of State the citizens what toward analogy, duty another due effect to under its giving rights arising *18 as a action, That rule of laws. by comity, duty imposed, Public the Federal Constitution. Law, (Bowyer’s has its foundation like municipal law, 162.) Comity, (1.) or The or social international com compact, express implied. fixed as was the Federal such, between pact art. A U. S., Constitution. (Const. 10.) might (2.) § from the relation of enact that all arising obligations parent minority latter are child abolished with during child introduced in this hvreafter State, “imported, all thenceforth from such into this shall State,” obliga brought A enact that relation of husband tions be free. State might mischievous and in and wife was fraught consequences, “ for cover the said gross fact tyranny oppression; shall no exist relation within this longer State; that any introduced or into this wife hereafter brought imported, from all of that shall, thenceforth, obligations condition, first free.” America hurrah for the and the Young might law, minded women” might class known “strong applaud one of the latter occasion, On enactment latter. ” to all women might a rostrum “liberty class upon proclaiming (6 Ohio, Judge adopt speech well anti-slavery Swan “ it a new positive prohibition giving application, 671), and not a an active, ruling paren becomes operating, principle, " strikes down and ! ! there to What destroys thesis. pro rum and desolation of from the such laws tect this Union Federal Constitution relied now except guaranties form and the extent enforced, ? Unless they of our smallest unbridled sovereignty demand, vhich we MARCH, 1860. ALBANY, Lemmon v. The hand hold in its lasts, our Union will so present long Evil social pas- our system. whole dissolving the power set that at moment fanaticism might or some new sions in motion. case Scott’s the court Dred doctrines of VI. general notwithstanding. their maintained, alleged novelty must be tides either exist could without jurisdiction 1. That admiralty mind of Chief’ for too novel even an idea salt, great wisdom, at but, last, judicial sharpened Justice Marshall; immaterial cast aside these strong necessity, and impelled by found in substance of the thing, and looking incidents our and inland rivers great the Constitution government R., 443; How. U. S. Fitzhugh, Judge (Genesee seas. Chief administration, 2. actual Dissent, Whilst, Daniel’s in our must used charters thus be words great some political more than was in the taken comprehend contemplation if framers; intent of their we would the Re others, preserve must be limited their carefully covered public, sphere at the mental vision time. If Utah should make its (1.) pe murder, culiar institution a» religious duty, Thugs regard *19 it's should conduct rites with all the and external decency purity times, its patriarchal Congress, within several sphere, theirs, still it to might legislate against extent without constitutional restraints. Our violating Repub lic was founded with civilization, the existence of which is if not a law practice incompatible. Self-preservation, nature, an men. If a invariable practice among should fall into the assassination of tra Thugism respect as a velers could religious not and the ceremony, Congress federal the national judiciary, executive by military force repress ? Rev. practice (Fdinb. July, 1858, 120.) far The “men” who made the Declaration of (2.) in Independence ” “ free 1776; inhabitants of in Articles of Con spoken federation in (art. and the “inhabitants” 4), November, 1777, ” “ and male inhabitants mentioned the State Constitutions of that How., did (19 not all day include to whom these 574), ip terms were Indians lexicographically applicable. living IN THE COURT OF APPEALS. CASES n The Lemmon (20 Johns., 710, their tribes were not' included 734; How., (19 were not included negroes Cubtis, J., 404.) Hoio.; at the close of our How., When Contra, revolutionary the same States sat down to frame the great struggle family ” “ union, for a and a citizens more perfect perpetual as the source whom of all recognized supreme original they were the same class acted at who together political power rare in such instances and to such limited If, outset. extent (18 Pick., notice had been to 209), negroes escape permitted an overstrained particular places, liberality interpre laws, tation to by ignorance them, glide noiselessly into a an exercise inference partial political power, fatal should not thence be De minimis non Republic drawn. curat lex. was forever excluded from social (3.) negro an indubitable union what it would nature; folly - been him to endow political Indeed, equality. has been it cannot be done; never done. impossible. Whenever shall (4.) Union declare re judiciary North spect negroes emancipated they ” “ citizens of the State in dwell, and therefore (cid:127) “ under the Constitution (Art. subd. entitled 1), § States all several (other) immunities citi privileges the law zens,” nature, which so negro-philism frequently will demand the of our appeals, irresistibly dissolution Union. We maintain the negro was the storm permitted during battle steal into in the fundamental institutions of place our full where, with country, the fell accomplish pur he lurk until the hour pose, when shall be his pleasure the torch and our apply forever. explode Republic VII. “It fit that the court should be highly below cor rected the view which it has taken of this matter, since doctrine laid down it in this sentence is *20 inconsistent with of this peace and the of other country, States.” rights (Per 1 Stowell, Lord Dod., 99.)
Joseph Blunt, for The People, respondents.
T. The state of is slavery natural is contrary right,
ALBANY, MARCH, 1860. 585 v.
Lemmon not favor All regarded system jurisprudence. intendment is and in against it, favor freedom. Sla- legal is the of a man under the local of a State laws very ownership It is where exists. from derived slavery any compact consent of the and its slave. continu- originates force, is ance maintained force. the law According slavery, the children of the become His slave slaves. labor all of his labor to his products that labor master, belong at the coerced, discretion master, by stripes, death. short of punishment Slavery requires-a enforce the rules of the peculiar system master, which are irreconcilable with the of States jurisprudence where does not exist.
The Roman did not (Edict. allow freedom to be sold. Theod., is contra 94, naturam. Inst., lib. 95.) Slavery (Just. §§ 1, tit. Aristotle 3; Fortescue, lib. ch. Politic., 1, his dis 3.) course to Ab the laws homine YI, England, Henry says: ct vitio introducta est libertas hominis pro servitus. Sed Deo est indita natures. ato is different from (Cap. slave 42.) right to other Codede l'Hu (Vide Esclavage property. manite; Pick., 18 2 216; Forbes McLean, 596; Pet., 11; & Barn. Cochrane, Cress.,448.)
II. The law and does not local, beyond operate State where is established. territory When the slave carried, beyond he escapes jurisdiction, becomes free, and the he State which resorts is under no obligation restore him, virtue except by express stipulation. (Grotius, 2, 15, id., lib. ch. 5, 1; 10, 2, chap. 1; Wicquefort'sEmbassador, lib. Bodin de lib. 1, 418; p. Rep., 1, 45; cap. Martin, 385.) Case the Creole and in the House of opinion Lords, 1842. Phillimore on International (1 Law, 316-345.) 1531,
In Court at Mechlin Supreme an rejected applica- tion for surrendering fugitive (Gudelin de Spain. Jure lib. ch. Noviss,
In Jean a slave from ¡Borcaut, St. Domingo, landed in and some France, formalities required edict of 1716 been he was having omitted, declared free. (15 vol., YI.
Smith.—Yol. *21 APPEALS. THE OE 586 IN COURT CASES Lemmon v. from the colonies be- 1716, Before slaves Celebres,3.) Causes in France. free as soon as landed came they (Id.) a slave from Hindostán, In was 1758, Francisque, negro of the edicto into formalities France, although brought had been he declared with, and 1738 was complied not been slaves those edicts had extended to because free, Denissart Decisions East (3d Nouvelles, Indies. 406.) and sold himself into a Pole into Russia, In went , taken Holland he his free- into claimed ; been having Ambassador et declared free. Ses was dom, (Wiquefort's on International Phill. Fonctions, 1, p. 418; Law, lib. 342.) De cites two cases the same char in Bodinus, República, a Ambassador a in France. One where brought acter Spanish of all remonstrance he his was retinue, spite slave at a other, merchant, touching declared free. Spanish a on to Genoa board on his with slave Toulon, sea, way < (Bodin de lib. Rep., 1, was declared free. 41.) slave Lord Eden. Ch. 1762, Stanley Harvey (2 In Rep., 126), Northington a held that becomes as soon as he slave free In case Ses Knight, lands England. negro, Scotland, held same Court, 1770, sions principle on Divorce, In the Rep. App., Somerset (Fergusson's case, 396.) Mansfield who had been held, Lord in Vir negro bought free. be Howell brought England, (20 S. T., ginia In the doctrine was applied thirty-eight of a British on board man-of-war off Florida, came who hav Florida from a Admiral Cockburn plantation. escaped ing owner, and the sued him in the Forbes, them to free, held for their value. on Bench Judgment defendant, King’s became free board British coming ground & neutral Barn. Dowl. (2 Cres.,448; being territory. ship, & Ryl., 697.) the Court of Appeals held, where Kentucky
In born in had been into taken Indiana under Kentucky the introduction of laws, allowing slaves without territorial afterwards free, back Ken becoming brought their she became free. tuoky,
ALBANY, MARCH, 1860.
Lemmon v. The People. disclaim The court that “in this we said, deciding question, of all influence of the which we general principles liberty it is, to be decided conceive law admire, ought by to be. is sanctioned the laws and not as ought Slavery by and the to hold them under our of right municipal But this as a we right view regulations, unquestionable. of a character, law without existing by positive municipal in the law of or the and common nature, unwritten foundation v. 2 A. K. “it (Rankin Lydia, Marsh. R., Again, aw.” 470.) is the of another to the labor of a exer- right whether slave, cised or constitutes not, which or slavery, servi- involuntary tude. The of residence right, then, seven during years’ not Indiana, was but ceased to exist; Lydia only suspended, and we are atoare law this which or does State can into when once bring operation right destroyed. be a construction without to be construed— would language unwritten, without law, written implication any scrap from the inference common, could be drawn statutory —to to a that slave, revive when had right right passed and he had himself, over slave become free.” (Id., 472.)
In the Court of that 1805, a Vir- held, Appeals Virginia taken into slave, owner there ginia Maryland, kept than a free became back to. being brought more year, State Virginia—that having prohibited importation slaves. 5 Call's Hunter (Wilson Isbell, R., 430; Fulcher, v. v. Leigh., 1 172.) In taken his slave,
. owner occasionally to work his in all quarry Virginia, months, Maryland, twelve held to become free—the Virginia having nrohibited 5 Farr (Stewart slaves. v. importation Oakes, & Johns., 107.) Louisiana that a held,
In Court of slave Supreme taken from into Ohio to became reside, free; Kentucky that become into a slave her. free, removal State with having (14 Martin's did not make her a master slave again. R, 401.) into France, it held taken afterwards In 1835 slave IN THE CASES COURT OF APPEALS. y.
Lemmon back to became Louisiana, free. Louise brought (Marie v. Marot, R., Louis. In 1816 the same court 475.) held that a per claimed as a son slave a bill of sale executed in a free must be deemed territory, free, unless convey him out could be ing justified, him proving to be a slave. fugitive Nash, (Forsyth Martin, Before the act 1846, the courts Louisiana held that a always taken into free State became and that he did not free; *23 become a slave back. upon brought v. being (Eugenie Preval, Louis. 2 Annual R., 180; Smith v. 13 Louis. Smith, R., 444; Himel, v. 10 Louis. Ann. Virginia R., 185; Poult Josephine v. 1 14 id., Martin ney, 328; R., Louis. 401.) The Court Missouri that the actual held, resi Supreme in dence a Illinois is sufficient evidence slave freedom. 2 in v. Mo. that a (Milly Smith, Rep., 36, slave Also, 1829.) on his route a taken into Illinois but hired Missouri, became free. there, (Julia resident while v. 3 McKinney, id., on same, The his in where slave 270, was 1833.) journey 592) four in Illinois. detained v. 4 id., weeks (Wilson Melvin, an officer in And where took his to his slave 1837.) army northwestern the slave held free. territory, post Walker, 350, 4 id., v. (Rachel 1836.) Court of In South in an 1851, Appeals Carolina, of a slave, action for the a recognized value principle ain free State became free. v. 4 (Ellis slave landing Welch, Rich., 468.) General Court held
In that a 1840, Virginia slave Massachusetts master into taken her back into brought to her freedom. was entitled Pleas (Commonwealthv. Virginia, 697; Horton, In this case Leigh., Betty id., ant, 615.) held that this freedom was the court action acquired by of Massachusetts there. coming the law Shaw held that a Chief Justice In slave temporarily into his owner became Massachusetts, free. brought (Com R., Pick. Aves, 18 193.) monwealth v. in the Federal Constitution
III. provision relating this of universal slaves, recognizes principle jurispru- fugitive ALBANY, 1860. MARCH. v. The People. an on the free obligation States
deuce, imposes were If slaves recognized pro slaves. limited fugitive unneces would Constitution, provision under perty discussion was was under this provision When sary. “ “ before held out the word legally” striking amended by could be legal some because thought slavery service;” “ there the laws under of view, substituting a moral point 306, 365, Federal Constitution,1787, pages 384.) (Journal of.” to admit in the Constitution then deemed improper It was Works, in men. there could be (Madison's idea that property of this says: C. C. speaking provision, Pinckney, 1429.) our whatever slaves, obtained to recover right “We take is a we of America refuge—which part Peters, not before.” (16 had claimed as are free slaves, here
IY. of this State. R. S., enactment Legislature (1 express “No held shall be 3, tit. person 656, part 1.)§ into this introduced, brought armjpre imported, “ such shall be free.” whatever. Every tence person Every free.” The into this State as slave shall be brought *24 person made in of in transitu wit> favor originally persons exception in 1841. (Ch. was slaves, their repealed 247.) control the condition of its citizens to declare and The right and has been conferred not is a belonging right over the Federal Government. Otherwise whole power on the control of must be deemed within Congress. slavery of held of cannot be virtue any provision Y. They cited on of the United The provisions States. Constitution That to are: relating before Mr. Justice the argument Paine full faith and That credit from justice. (Art. 4, fugitives 2.)§ of to acts in each to each State, State public be given shall of each the citizens That State. (Art. every § of citi and immunities to all shall be entitled privileges no citizen shall That States. the several zens 2.)§ {Art. due of of without life, process liberty, property, be deprived of None these provisions Amendments.) of law. {Art. reference to this case. not fugitives escap- They have (X'W.T CASES IN THE OF APPEALS. Lemniun v. The into this from another ing State.' We full faith and give to credit the act of that made these Virginia, slave? persons there. We allow all the and immuni- appellant privileges of a citizen ties of this He has not State. been deprived these had no property by proceedings. appellant pro-" in these It ceased to be he when perty persons. property them into the brought State Hew York.
The Constitution of the United States is a grant powerá' to the General It Government. conse- ‘follows, by necessary that what If there is no quence, reserved. granted enforce Hew York grant obligation a citizen of a his here and allow slave State bring retain them here as slaves, while sojourning passing through this has not the General Government power; to do does not York so exist. Hew right having prohi- bited declare her unconstitu- no can law act, jurisdiction tional. has the to reiterate the She law nature—to her of an that exists soil violation natural evil purge well the sacred maintain, right—to practice theory, Even rights personal liberty. consenting from the reclamation of she does not service, fugitives acknow She that ledge agrees ignore slavery. question; and not to into the nature of the service inquire duty or an whether fugitive, apprentice; part he to remit him to the courts the State fled. her bond extends no fur- But is the extent of her duty, than to the As to all other her ther fugitive. persons, their all claimants. protect personal against liberty was not at the formation the Constitu-' contemplated, institution of tion, be a the' permanent United States. It is inconsistent lies at' principle *25 ’ the foundation of our in It is contradiction to government. the Declaration of to to the' Independence, preamble All Constitution. of that instrument and' con-' provisions look ultimate to its extinction the’ temporaneous history by and action of the legislation State governments. (Emancipa tion acts Rhode Vermont New 1777; Hampshire, 1783;
ALBANY, MARCH, 1860. Lemmon v. The New New 1784; Connecticut, York, 1799; Jersey, 1784; Island, Rights Bill 1780; Massachusetts, 1804; Pennsylvania, that Lechmere, 1770, in James was v. slavery and decision Madison's 2d Franklin's Works, 517; in that vol. State; illegal Notes, 152; Will, Washington's vol., 1429; Works, Jefferson's Crisis, 569; Helper's 193-224.) slave into
In the Con- incorporating fugitive provision was careful not to do stitution, Convention anything their sanction as slavery legal. should provision imply committee, 12, 1787, read, September “legally reported and it amended was service;” held to September “ “ read so held service out under legally,” striking (Journal, 384, Madison, thereof.” 1558 and pp. the laws was substituted for The word “service” “servitude,” 1589.) of Edmund latter motion Randolph; being descriptive former of free and the (8 Mad., slaves, persons. 1569.) are not to be held under slaves, VI. These persons any nor Union, between States covenants implied rule comity. on the no of Hew obligation York, 1. There is implied part borders, her form or under a slave allow surrender relating circumstances. provision is the case such where an service, possible fhgitives arise. And incorporating can provision obligation case is other excluded. Constitution, Hxpressiounius, every and it If right existed, alterius. general exclusio of a slave State still be held if might admitted or taken into free State the consti- transitu, into escaping be as to would fugitives superfluous. tutional provision us to admit into of States our requires 2. Ho comity form. In towards the laws of extending comity in any and not the it is Court establishes Earle, Augusta Pet., rule. Justice (Chief Taney, L. ii, xxii, ch. 589; Grotius, § no such bécause the here, can be State has comity
There these declaring statute be free an made express enforced an is not obligation by superior, Comity *26 CASES IN OF TIIE COURT APPEALS. Lemmon Tlie v. allowed In deci courtesy by party assuming duty. whether act, we look to our ding requires own comity And it adjudication laws can never be authority. exercised in of our violation laws. (Story, Laws, §§ Conflictof The 23, 24, 37; v. Common 36, People, Scam., 461; Willard wealth Pick. Aves, 221; 3 Am. R., Jurist, 404.)
No us to allow an act citizens of comity requires here, by another if done our own citizens would be a felony.
The of nations based comity upon principles destroy all to hold these slaves. The persons laws of moral right, the'recognition law personal nations liberty by A forbid it. state from Austria or prisoner, escaping (a Italy be reclaimed. cannot A serf from law), Russia, or a slave, hither brought master, his Barbary transitu, could not be from here restrained law or liberty comity. To in his discover Yattel, Preliminary (says Discourse) must and duties of we rights nations, natural investigate of nations duties individuals. rights are, their of men natural to nations. origin, rights applied Montes. b. ch. *Ifthe (§ 6, Laws, 15, v, Spirit sanctity § as much as it is personal liberty regarded practice theories of morals—if courts government, declared this case legislatures admitted particular law, a be drawn in general argument favor of cogent may of these from the maxims and liberty persons, principles the laws of nations, developed by highest authority_ Drou des Yattel ch. (Le Cens., lib. after Says 152), § whether not remarking briefly upon question, prisoners “This been enslaved, can has dis war topic enough I shall it. cussed. Fortunately disgrace pursue has been L. (Grot., ii, banished ch. humanity Europe.” x, 1.)§ These cannot be restrained of their
YU. liberty,, have been their state in If whatever restrained Yirginia. it must be either under here, virtue of liberty our under the laws laws, allegation Yirginia.
ALBANY, MARCH, 1860. People. v. is, writ were held and confined in they house certain in this their will. The answer city, against are is, slaves. they such Our laws furnish no prohibit holding. They remedy if the claimed refuse to be detained. The person question here can be is, detained? our they laws; Certainly by and our courts can administer our own laws. The laws are not in force here. If the Virginia slave how resists, can he be If the master has not the compelled subjection? to enforce he cannot the aid of power obedience, law, invoke for no exists for such a that our case. follows, laws, this if remain neutral, leave to their respect, parties This natural so, slave free. rights. being b; VIII. free common (Co. 124, law. They Litt., 20 Howell's Case, Somersets State Trial, 79; v. Wedder Knight Forbes 2 & id., 2; Cochrane, v. Barn. burn, p. Green Cress.,448; wood Case 6 Mass. Curtis, R., 366; 10 Antelope, Jones v. Wheat., 420; Zandt, Van McLean,596.) for M. Hearts, William respondents.
I. The writ Delongs right habeas^ccnpus every per this restrained within son under liberty State, pretence unless certain whatsoever, judicial of Federal or process R. This (2 S., 563, authority. 21.) absolute § invasion, legislative against against judicial discretion. (1) (2) (C art. R. S., 1, 4; onst, 31.) § § human restrained of being,
In behalf liberty writ, must State, legal issue. necessity, is to of the writ office whose enlarge person'in behalf it unless cause be the restraint shown legal issues, liberty continuation; enlargement or its unless such liberty, from the shown, flows writ contrary cause game writ be issued. (2 R. necessity required legal S., § does the rela- case, then, is, The whole question
II. subsisted be- slave, Virginia owner tion attend there, and these while Lemmon Mrs. tween VI. . Smith.—Vol. CASES IN THE COUKT OF APPEALS.
Lemmon t>. The them while commorant within this course travel so as Virginia Texas, to furnish “legal ” cause for the restraint of liberty so complained of, of this compel State to authority sanction and maintain such restraint of liberty.
1. cause restraint can Legal be none other than an to maintain the restraint authority which has the force of law within this State. has or can claim ¡Nothing the authority *28 this of law within unless it State, proceeds— From the State, is found (A.) sovereignty or Constitution Statutes State, its unwritten com- or— mon law; (or customary) Government, From Federal whose Constitution anc (B.) of this the force law within State. So far as the Statutes this far State, of has force within and so nations as, “by of other have force within this sovereignties the laws comity,” not from their their own efficacy, vigor, derive State, they as a the law this State. (Story administration part 33, 35, Bank 20, 25, 29, 37, 38; 18, 23, Laws, §§ Confl. v. Pet., 519, 589; Dalrymple 13 Bario, Dalrymple, v. Augusta Hagg. R., 59; Sandford, How., Dred v. 19 Scott Consist. 2 ) 461, 486, 460, 487. the United States and federar The Constitution 2. The Federal Constitution on subject. no law statutes give no con- have, under it theory, principle nnd legislation basis, the social social institutions, the domestic cern with obtain several within conditions, the civil relations, and limited, are special actual exceptions States. are— the rule. They prove within obtaining conditions the civil A reference (A.) enumeration persons an artificial to furnish States ¡basis direct distribu- taxation of federal representation the States. between tively of suffrage within rights to the political A reference (B.) of the federal the basis supplying as, respectively, States therein.
suffrage citizens of every securing A provision (C.) 595 MARCH, 1860. ALBANY, Lemmon v. The immunities (whatever privileges every
within
in each to its own citizens.
accorded
they may be)
laws
regulations
A
preventing
(D.)
provision
it,
condition
persons
the civil
State governing
“held to
service
the condition
operating
into
thereof,
under
in one
escaping
labor
art.
subd. 1 and
art.
(Const.
2,
3;
4,
2,
S.,U.
another.”
§
§
States and
Free
Laws
Slave
States
and 3;
subd. 1
4
C. C.
Jones
396;
Wash.
Simmons,
R.,
Ex
v.
parte
Slavery;
Grovesv.
15
597;
Slaughter,
Peters, 506,
McLean,
Zandt,
Van
3. its limits. in no case within art. (Const., 1, 17; Som slavery § Trials, 79; How. St. Knight 20 v. case, mersett’s Wedderburn, 2 Barn. & Cochrane, Cress.,448; Forbes v. Shanley v. id., 2; 2 The Grace, Slave 2 126; Hagg. Eden, Adm., 118, Harvey, Co. 124 96; Litt., Laws, 104; Story b.) § Confl. of this State effects statute law The universal 4. pro of the condition of and slavery prohibition scription S., 656, 1; the State. (1 R. id., 659, limits of 2 R. 16; the § § 19 591, Dred Scottv. Laws Sandford, How., 664, 28; 595; S., § 1857, 797.) of considered under whether, It remains the only Ills the nations, the intercourse governing principles and as and into the adopted incorporated of friendly of our law, the municipal comity requires administration of the relation of slave owner and support and recognition our not- strangers passing through between territory, and the absolute withstanding policy comprehensive legisla CASES IN THE OF COURT APPEAL. v. Lemmon The People. tion which that relation and render the civil prohibit condition in our own impossible slavery society. it is to be under comity, observed, is inquiiy," (1) and not of the latter no Court, which has authority exercise in behalf of the comity judicial the whether main and determining actual policy legis of the State lation exhibit and of; comity inquired (2) whether the extends to aid of comity yielding affirmative State to maintain and slave owner mastery of the slave. subjection (Story Bank Laws, 38; § Confl. Dred Augusta Earle, Pet., 589; Scott v. Sandford, How., 591.)
1. and principles, reason con- policy, public sentiments, science, authoritative will the State as such, sovereignty, been in the most authentic expressed form, with the distinct most meaning, whencesoever slavery, comes, casual or for access, whatsoever transient whatsoever not be tolerated our soil. stay,-shall That case of has particular transit slavery during the,-intent or effect escaped legislation subject, once accorded to appears permission it, the^express subsequent such abrogation R. S, 1, ch. permission. (1 part tit. 20, 7, 6, 7; Laws Repealing aet, ch. 1841, Upon §§ 247.) such declaration sentiments principles State, through Legislature, there no or scope opportunity doubt or judicial determination. Laws, (Story 36, §§ Confl. 23, 1, Vattel, 24; §§ 2. manifest enactment of the But, were”such will sovereign matter of reason uni- wanting, general premises status versal never authority, upheld case resident or strangers, transit, when domestic *30 and reject., such statm as a condition civil suppress or social relation. The same reasons of and forbid
(A.) justice which policy of sanction the aid law of force to public pro- status our scribed own forbid them tin among population, of our case strangers within territory.
ALBANY, MARCH, 1860.
Lemmon The status of is not a natural relation, but con slavery (B.) and at it moment nature, is an subsists, ever every trary and active of the new violation law nature. (Const. Va., Elements Sights, 14, 15; Taylor’s Sill Civil Law, §§ 263; Geo.,580; Statutes 429; Dev., Henning's at Large, vol. 10, id., 11, 129; 322, 324.) mere originates predominance is physical force, mere
continued social force predominance or municipal law. wherever force in the
Whenever physical one stage, the social force or in the other law municipal stage, fails, status for it has to rest falls, nothing upon. and defend the
To continue status, then, our territory, must to some law. He stranger appeal has municipal him no a system law be brought municipal weapon to this status he finds ; and a no such shield system here. His to force nature, law against appeal against justice, vain, free. and his captive built nations, law of
(C.) nature, has of the status same view adopted slavery, resting no finding force against right, outside support ' law which municipal it. establishes jurisdiction the status A in its proscribing domestic (D.) either of has no law or of force, to system, apparatus, main- between the relation strangers. tain no code slave owner’s
It has or of rights the slave’s for no the enforcement of submission, processes no either, rules or adjudication no premises, of evidence guard-houses, the slave whipping-posts uphold owner’s prisons resistance. crush slave’s should a which status recognize But comity can subsist refuse the force, force to it, sustain vis yet only by illusory. fragment If we recognize slavery imported by stranger, the fabric it is which must adopt fragment we and vitality. derives fraud eloigned If the slave force, the owner must him or for trover his value. replevin *31 OF APPEALS. CASES IN THE COURT
Lemmon attachment the obtain a slave against a creditor foreign If sell the seize and slaves. the must sheriff owner, must administer the the slave die, If the owner surrogate assets. to
If the birth we have native-born slave give offspring, slave. maim or obedience to his
If the owner, enforcing caprices, in bar to the admit the status as a his must slave, we plea slay justice. public
If his owner’s the be tried for crime, slave upon complaint, of his be excluded. the fellow must testimony slave, the If the be or executed for crime, value imprisoned as for owner, taken must be made the good taken for use.” “private public property from our is demand nothing, comity; Everything must our answer. nothing, everything ° of nations The rule of the law permits (E.) transit of and their strangers through friendly property not our the relation does laws slave owner require uphold and slave between strangers. men are not the of nations, subject law property.
By law which makes nations, law municipal By limited men subject power property, its territorial enforce that is jurisdiction. itself, our stand of nations, then, strangers law By their artificial relation as men, soil in their natural relations 10 Wheat., Antelope, terminated. absolutely (The being casesut supra.) attributes nations which law The principle (F.) status of to fix the civil persons, domicil the our own territory, our within does uphold, require strangers. between relation of slave owner the conse- us recognise This requires (1) principle only jurisdiction own in reference to within subjects quences, out to domestic interests), done far as without prejudice (so maybe status itself status where abroad; existing (2) domestic as a limits and is here our permissible brought *32 MARCH, I860. ALBANY, The as an authentic origin law status, recognize foreign of the actual status. support domicil, in is thus that contracted foreign
It marriage as a be maintained to the will there, law according municipal to that traits as here, belong such marriage continuing in lawful here; relation incestuous yet, marriage polygamy, aas continuing cannot be held lawful domicil, foreign 114, Laws, a., 89, relation here. (Story §§ Confl. 96, 104, 620, 624.) in which determining and. This free sovereign (Gr.) its add the of vigor of two external laws will by comity viz., foreign and administration within adoption territory, of or the nations of law law force against right, municipal under the same to its domestic conformed own policy impulse the odious and its' violent which has own purged system nations the law will injustice slavery, prefer and set the slave free. Virginia, et crudelis libertati non Nostra est, Impius judicandus qui favet. ut dant Litt., IN OMNI CASU libertati supra.) jura {Go. favorern. of habeas cor- J. writ petition upon Denio, to be that the colored issued, sought states was pus on the from were, night, discharged imprisonment preceding harbor Bichmond, taken the steamer from City at the time were New York, petition, presenting in that confined in a certain house Carlisle street city. “ name of Lemmings,” directed writ appellant by “ colored charge eight persons lately having person of' Bichmond, steamer man- taken from the City were confined.” The house Carlisle street whose they and it Lemmon, return is made speaks appellant, are therein to be slaves, who alleged colored persons “the Lemmon, of Juliet eight per- property of habeas corpus.” alleges sons named in the said writ of Mrs. Lemmon, taken out of the while were possession Texas, and the Norfolk, in transitu Virginia, between States; and Texas slaveholding that both Virginia IN CASES THE OF COURT APPEALS. Lemmon v. The People. slayes had no intention she into this bringitg remain or in manner therein, on their transit as except aforesaid York; New that she com- through was port to touch or did pelled not intend re- by necessity land, main than and that such for the longer necessary, landing and transit purpose and not and that otherwise, she passage did not intend to sell the It is also slaves. stated that she was or accident” to compelled by take “necessity passage *33 Norfolk in the above mentioned and that Texas was steamship, her ultimate of destination. place
I understand the effect of statements to be these that MrS. Lemmon, being slaves, owner these desired them take from her residence Norfolk to the State of Texas; and, as a means of she effecting purpose, embarked, for New mentioned, York, with view secure a steamship from thence to her As passage destination. is place nothing said of stress no marine weather, is casualty men-^ tioned, the' which is necessity landing, of, no spoken refers, to the doubt, that mode her exigency prosecuting journey. If the in which she arrived was not bound for ship the Gulf of Mexico, she would be under the necessity at landing New York to reembark in some other vessel for that sailing part United I States; this, is what it was suppose, intended to state. The or accident which necessity mention- ed as her to embark at Norfolk in having compelled City to refer ¡Richmond, understood to some -circumstance her which a direct prevented making voyage Virginia Texas. The to be decided is whether the question bringing into under these ,the slaves this State circumstances entitled to their freedom. them of this State of the statutes
'The intention, effect, are plain unequivocal. By bearing point very uj)on that no held as it was declared 1817, an act person passed into this brought be introduced should a slave imported, cases afterwards whatever, except pretence here brought slave act, contrary mentioned cases Among to be excepted act declared free. was MARCH, ALBANY, 1860.
Lemmon of a not an inhabitant was person, passing it, who allowed to his slaves him; through bring not to than months. were remain the State nine longer ch. of this act (Laws 1817, 9,15.) portions §§ concern the at were reenacted present revision question in 1830. laws The first and last sections title the following language: “ No as 1. held intro- shall be person imported, § duced or into this State on brought whatsoever, any pretence in the cases hereinafter such person except specified. Every shall be free. held as a hath been slave who Every person introduced in this State in force brought contrary at the shall time, be free.” “ born in 16. this State, whether white Every person § is free. colored, born who shall hereafter be person Every within this State shall be into free; every person brought this slave, except authorized shall title, free.” S., ch tit. (R. part 1,
The intermediate three to contain sections, inclusive, seven *34 the Section 6 is as exceptions. follows: not “Any person, an inhabitant of this being to or State, who shall be traveling or from, this passing through him State, with bring may held in and person lawfully take such slavery, person may him this the but State; so held in shall person or reside continue in this State more than nine if months; such residence be continued jhat time such shall beyond person In be free.” the 1841, the year this sec Legislature repealed tion, with the four together the containing exceptions general above mentioned. provisions The effect (Ch. 247.) this was to render 1st and sections 16th absolute repeal and If doubt of could this be entertained unqualified. of the title the rules upon perusal left part unrepealed, of construction us would to look at the oblige repealed portions to ascertain order the sense of Story, the residue. v. (Bussey stat-* Barn. & Thus Adolph., examined, meaning ute is had declared terms though Legislature plain if should introduce a into this any person
Smith.—Yol. YI. CASES IN THE OF COURT APPEALS. of a to or from or it, through course passing journey ii^ shall be free. the slave (cid:127) had the constitutional therefore, If, Legislature 'this the State meets the case statute, enact precisely on the were before the who writ brought judge persons of habeas and his order them from constraint corpus, discharging has correct. Every sovereign right unquestionably its to determine the condition of all laws who by may persons its at time be within to exclude therefrom jurisdiction; those introduction would contravene whose policy, declare the conditions be received, they may or restraint be subordination allowed what lawfully by may another. Each one-class over description as it fit enact such rules see has, moreover, may the title to and to declare what subjects respecting property, the attributes of within the shall, State, possess property, of a These what shall be right. incapable proprietary powers limited or modified of course be its own con- may variously stitutional or fundamental such laws; independently none are to exist restraints affecting (and alleged case) of the State these over without subjects legislative authority limit so far as the State has control, except voluntarily her with other abridged jurisdiction States. by arrangements There cases where the conditions are, true, many impressed of other States upon persons property by friendly our recognized jurisdiction. ought own in the absence defined, legislation, These are express assent and civilized coun- usage practice general into the considered as tries, being incorporated municipal are not, administered courts. -how- They law, freely *35 on account of thus allowed residing ever, any supposed power to enact laws .which should be on our in another State binding the assent of the but from tribunals, presumed law-making the of other abide civilized States. Hence usages by power the that the which a Legislature State, *it follows where on the claimed has ground right privilege comity, by the of the its laws the subject alleged tribu- spoken upon right, MARCH, 1860. ALBANY, v. The People. Lemmon pals of decision among; for the rule to search at are not liberty are bound adopt of international comity, doctrines the of their government laid down political by the directions considered necessary therefore, not, haveWe State. own negro a where of nations, country the law whether by inquire a to claim of neigh- has right established generally have allowed, it is not right in which boring course of recognized protected property species last mentioned taken owner through lawful journey case be the subject as undoubtedly" would country, and it is to say as proper everywhere; recognized property has not for the urged that the counsel principle appellant of Mrs. Lemmon. of the claim in support of a State to has been said sovereign What jurisdiction the status applies determine as it has been modified Union, except to the States of the United States (Groves the Constitution v. restrained by Moorev. Pet., 419; People Illinois, Slaughter, York 11Miln, Pet., New There How., 13; City 131, 139.) of the reasons, independently provisions undoubtedly Constitution, Federal conciliatory legislation part institutions and towards interests polity, several of a much more of each character than those other, persuasive most between States uncon friendly even which prevail but these are addressed union; exclu nected any political so that States; respective political power sively entertain as to the might reasonableness, whatever opinion .we (cid:127) of the moral obligation non-slave- even or policy, to establish similar to those which States provisions holding out of the it is Statutes, stricken Revised not in our been of this State in one of its administering while power, all to act at those sentiments, when justice, tribunals fail to that the do, cannot has delibe see, Legislature as we we them. rately repudiated has been mentioned as residing itself to Constitution extend to is assumed
States per- such of the States as allow condition sons held slaves *36 CASES IN OF THE COURT APPEALS. Lemmon v. The People; to of to a also in the slavery, apply of another territory which did not State, allow even slavery, with an unaccompanied intention on the of hold him owner to in a part state of sla- in such other very State. provision return respecting of from contains fugitives service a to very strong implication that that effect. It declares no held to service or labor person in one under the into thereof, shall escaping another, in be consequence any regulation therein, discharged such, from service at labor, &c. There was least one State at the of the Constitution did not tolerate adoption sla- and in of the other the number of several States very; slaves so small and sentiment in was favor emanci- prevailing so that it certain that would pation strong, was morally slavery assumed authors be abolished. It was speedily that the of a Federative Union would not of fact Constitution, the States which should itself create a on the duty part abolish owners rights slavery respect from continued exist. thence the States where escaping the States establish would was apprehension rules or emancipation fugi- regulations looking primarily in from tives but that abolition labor, slavery held in would after draw person slavery principle would become free on manner, arriving, immediately had within the limits of such State. That then principle acted in a been case of noto- England great recently not fail which could well known cultivated riety, men actors who were intelligent framing principal A the Federal the name gentleman Constitution. Virginia his had occasion to make a from home in Stewart voyage his the intention affairs, .that own with England, Colony and he took as soon as were transacted; returning they Somerset, him as his his slave, whom negro servant personal hold he had was entitled Virginia purchased there. state the laws While slavery by prevailing absconded the service his London, negro were re-taken and on board vessel master, put lying bound to also Thames where Jamaica, prevailed,
- ALBANY, MARCH, 1860. v. The People. there sold as a slave. On purpose being application Lord Chief of the Mansfield, Justice a Bench,' writ King’s of habeas as was issued master Knowles corpus ves whose return to the writ sel, disclosed the facts. foregoing Lord Mansfield referred the case to the decision of the Court it Bench, where was unanimous King’s held, by opinion that of the and the restraint was judges, illegal, was negro (The S. discharged. Negro Case, T., Somerset Harg. 340; v. 'of the Stewart, was court that a Lofft, state opinion could not exist force law, and slavery positive except by yras considered that there no it law being uphold Eng of the land, law principles writ habeas respecting to the and it corpus themselves be immediately applied case, came continue the of the impossible imprisonment negro. The case decided in was from that time became a maxim that could not exist hi The idea England. was' in the reiterated literature of the popular fixed language, in the mind which public striking attributed to by metaphor fhe the Britisli Islands a which atmosphere caused quality the shackles of the to fall slave off. The laws of England respect were in of the ing personal general laws rights Colonies, continued the same after the Revolution they system in their provisions Constitutions, common adopting to alterations subject their own statutes. The literature the mother the Colonies was country. which the case of slaves was aspect fugitive presented this: authors Constitution therefore was A num
ber the States had little interest in the institu very continuing tion soon to abolish it were within their slavery, likely limits. should do so, When principle England the remedies for im rights personal illegal in such would States. The immediately prevail prisonment, and" the Somerset’s case judgment announced principles Lord admonitions that Mansfield, were even standing restraint of virtue of a title de temporary personal liberty by under the laws of could be sustained rived where slavery, did not exist an*5 institution where ‘law, by positive CASES IN THE OF COURT APPEALS. Lemmon habeas which was a cherished institution remedy corpus, of this inas established. Bead- well country England, for the rendition of ing fugitive provision slaves, these considerations it is afford, which not to light impossible that the assumed the Convention general perceive principle be that of a from State in he which was escape law- held to into one had service abolished fully transform him into a free would man. This ipso was re- facto *38 as the of a into a slave cognized legal consequence going where did not exist, even without the were though consent the will the A owner. he against would fortiori be free if the master him into a free State voluntarily brought for of his But the in own. the Consti- any purpose provision tution extended no further than the As case to fugitives. such the admitted of the cases, general consequence presence of a in a not to but he free State was was an slave prevail, in federal to be the returned to express provision compact the due. Other whom service was cases were party left to be t'o them. governed general applicable This as the free was owner was to deter- unreasonable, mine he his whether would slave voluntarily permit go did not him to be in allow held jurisdiction That his was within own but he could not bondage. power, his from out of always prevent escaping condition which their servile was recognized. provision suited to the and it case, went precisely exigency no further.
In other arrangements Constitution, examining appa- for no inserted reference having purposes rently slavery, to bear mind that we when slave ought passing fugitive Convention was future ex- contemplating provision istence of should abolished States which slavery, the institution union other States with where political It be still remain force. supposed would would naturally slave if there other cases which rights were abol- should to be in the States which owners ought protected ish in connection be pro- would adjusted slavery, they ALBANY, MARCH, 1860. v. The People.
Lemmon instead of left be that case, being looking vision specially from clauses primarily construction intended deduced by has been had no relation. necessary to which slavery cases extend clause does not that the beyond fugitive decided to another. of a one State the actual escape case But R., C. C. (Ex provi Simmons, Wash. 396.) parte its own language. limited so sion plainly shall of each State that the citizens declares The Constitution of citizens and immunities to all be entitled privileges in that instrument Ho (Art. provision States. several § the citizens of the United to constitute tended has so strongly influence in that direction cannot Its this. States one people a consideration what would have estimated without fully if it or some similar provision the condition people been of the Articles Prior inserted. adoption had not been no continent had the British colonies poli- Confederation, were connection, severally dependencies tical except Their relation to British crown. each was the bore other English colonies, same respectively which they *39 or in on this continent Asia. in con- When, Europe whether of became Revolution, they the severally independent sequence of each the citizens State States, would have been sovereign and in all the disabilities but for other, under a alienage every in into which entered they that provision compacts whereby The avoided. articles was during Rev- consequence adopted formed a for mutual league olution essentially protection against in them was felt to be force; external to passing necessary intercourse not which would community secure necessarily allied States. This among obtain even closely was effected by article that instrument, fourth which declared that the of each of the inhabitants States free and vagabonds, (paupers, should be entitled all justice to fugitives excepted) privi- immunities in and of free citizens the several States, and leges State that should free each have people ingress to and from other egress State, should therein enjoy all trade and the privileges to the commerce, subject same and restrictions as the duties, inhabitants impositions thereof, CASES IN THE OF COURT APPEALS.
Lemmon The u. The a still Constitution more intimate respectively. organized f&r all external and for Union, constituting purposes certain enumerated domestic but still single objects, nation; retained all was as to sub- principle sovereignty such as embraced were jects, except delegations power to the States. The the General Government prohibited social status of the and their relative rights people, personal each the definition and other, arrangements pro- respects the reserved States. The were among powers perty, the citizens rights citizenship upon provision conferring inserted substantially every every it stood in the Articles Confederation. now question be considered far the the sub- is, how State jurisdiction over are jects mentioned restricted con- just we provision once ; or, comeat sidering precise point controversy, whether obliges State governments recognize, a7iy within their way, own which jurisdiction, property the citizens of States which prevails may lawfully claim their the case of own States—beyond fugitive slaves. shall have language they thejprivileges immunities of States. ‘In several opinion my citizens/in is, meaning given State, citizen of every every other State shall the same immunities—that privileges the same is, rights—which citizens of that State In possess. the first to be place, of the disa- subjected bilities of can alienage. hold titles They same property by which other citizen hold no it, every other. Again, should any discriminating them legislation place in a worse situation than a citizen proper particular State would be has But the do nothing unlawful. clause *40 with the A distinctions founded on domicil. citizen Vir- ginia, his home having never been State, having within the State of has the same under our Hew York, rights laws which domiciled elsewhere, native born would citizen, and no have, other Either be the can rights. proprietor pro- can claim under here, neither which our perty rights But laws of the where belong residents State. laws MARCH, ALBANY, 1860. v. The People. a citizen of one
of the several States State differ, asserting rights must claim of the another, them laws last according mentioned to those which obtain in his State, according own.
The that a citizen carries into with position him, every into he institutions of the one in which go, legal may he was cannot be A little reflection will born, supported. very show the of the Our idea. laws declare contracts fallacy depend- of chance or ing skill, upon games lotteries, wagering policies insurance, for more than cent annum of in- bargains 7 per per In terest, others, void. other States such many contracts, or some of be But them, lawful. no one would contend that if made within this citizen of another State where they would have been lawful, would be enforced in our they courts. Certain of them, if made in another State and in con- with the laws would formity there, be executed our tribunals and the principles case comity; would be the same if made in were inor Europe foreign country. plause has to do with the doctrine of nothing international That doctrine, has been comity. remarked, depends upon of civilized nations and usage assent of the presumed legislative State in authority particular which the right and an claimed; denial of the express right by authority is decisive the claim. is the against then, How case of aided under consideration provision ? appellant has Legislature that no declared, effect, shall person into this bring slave in the course of even a journey between two if States, and that slaveholding he does, shall free. Our own citizens bound course If the owner these regulation. slaves is not in like mannei it is bound in her because, citizen of another State, she quality has to those of citizen of rights superior York, Hew here, or because, coming her here fora sending tempo- she has with sent brought her, rary purpose, them, and is entitled have those Virginia, laws enforced in the the mandate of our courts, notwithstanding own laws to the But the contrary. position too much. appellant proves Smith.—Von. VI.
CIO IN THE OF APPEALS. CASES COURT
Lemmon The to the citizens of each and immunities secured The privileges or time, are not limited the Constitution State by desired, be in a case, may for which, particular purpose if the Hence, in their character. and absolute are permanent claim, of the stat- from the operation can exemption appellant that she is on the a relies, ground respondent ute which and that our courts allowed, of a State citizen where slavery those confer, the title which she may to are obliged respect her as one and, retain slaves hefe during pleasure; to use and to sell is the it, power chief attributes property do not see how could be debarred of these I she it, dispose to our she choose ex- jurisdiction long rights- could them to a citizen of not, them. She sell ercise perhaps, our at all be bound "but laws, would events Hew who York, would citizen of a slave State—who bring other equally any of his own him the immunities State—might privileges But is that traffic in the slave my opinion property. lawfully this than she has no more right protection property would have citizens of upon bringing one of the and that the clause circumstances, same under the them here has no case. referred application -of Constitution that this clause to citizens of each I State entire gives concede of intercourse and that State, freedom with every should them free deny ingress attempt egress would void. But is citizens who these possess rights, are not free and slaves citizens. Even as is certainly negroes, been not to In known, well alleged possess quality. to, referred Illinois, Moore v. already Supreme declared Court United opinion, published forbid introduction States retained criminals fugitive into their slaves. territory paupers, conyiction statute of Hlinois, The case was under making mulatto or to harbor or secrete person negro, penal or labor a slave or servant service owing color being The indictment fugitive secreting other person. had his Missouri. owner had fled from owner who him as into so fugitive-law to reclaim bring intervened *42 MARCH, ALBANY, 1860. The v. People. and the court on the case was
operation,' placed ground by that it was within the of State legitimate power legislation, of its to exclude an promotion policy, unacceptable popula- I do tion. not at all doubt the to exclude a as I slave right do not him consider embraced under a the provision securing common it does not seem to me clear that one citizenship; who is a citizen of another State can thus be truly excluded, he a a be a unless he be though may pauper criminal, fugi- from ustice. tive The fourth article of confederation contained j an for a common exclud- exception provision citizenship, from its benefits as well as ing paupers vagabonds fugitives but this justice; was omitted in the exception correspond- of the Constitution. If a ing provision to slave attempting into come a State his accord can be own excluded on the ground mentioned, because as a slave he is an namely, unaccep- table inhabitant, as is clear he very be, would seem that follow he be if might expelled his accompanied by master. It it is be might, less true, mischievous permit a residence of such when under the person restraint of his but of owner; this the must Legislature judge. But it is not of the slave but of the master which supposed under the clause protected respecting citizenship. to the claim in answer that has been aspect given. already which, is that owner cannot do lawfully our anything do not to be done one of our permit own citizens, as a of this citizen State cannot bring its limits ex- under the condition that he cept shall become immediately free, owner these slaves could not do it without involving in the herself same consequences.
It remains to consider the effect this case of upon' the provi- sion given Congress com- regulate' (Art. merce several States. among If the § had been of this through navigable waters passing in a license vessel under the having coasting granted course coasting trade, act Congress regulating and in i two slave between situation 'had voyage been of habeas writ interrupted operation corpus, CASES IN THE COURT OF APPEALS. Leünuon am not I could have been prepared say they discharged under the of the statute. So-if provision such course had been landed voyage State in they territory a marine accident stress of In consequence weather. either case strictness have been would, they language, the State. In the case, introduced into latter their brought here would being owner, being regards involuntary, *43 ” ‘‘ the the statute. not been here of meaning brought the the decisions Commission brig Enterprize, {Case of of of But under the Convention the case does Claims, 1853,p. 187.) of these features. Its actual circumstances not either of present the these her slaves, Lemmon owner of at are these: Mrs. being take in chose to them to the State Texas Norfolk, residence that in further than it was not a not disclosed, purpose is not New York them. order to sell Geographically, can see that it but would a readily route we voyage, such to that from vessels to them which city bring be convenient to be embarked from the Union, most in sail to ports to a in the extreme southern a bound in port part thence ship This done. She came Union. was what actually in to to order sea, New York embark from the negroes by of habeas writ was served Texas; corpus thence to when in out at a house set when city, ready were staying and not remain than sail, intending longer a should vessel be necessary. should a in sense just under consideration regula-
The act me the idea that does not suggest tion of commerce. an It would have subject. connection with has It is of commerce. altogether independent extensive operation of the decisión Supreme not therefore within scope cases the In those cases. How., in (7 Court passenger taxes had upon and Massachusetts imposed York States New court at the States. The those ports arrivingbysea passengers here coming passengers considering carrying sea between ports being transported countries foreign inter-state an of foreign to be operation different moreover the power regulate and holding commerce, MARCH, 1860. ALBANY, v. The People. declared those commerce was vested exclusively Congress, United to be a the Constitution of the acts violation States. that an act be considered settled those judgments It directly subject foreign of State legislation acting upon a commerce, or inter-state substance being regulation of that unwarranted, would whether subject, provisions act of But hostile to not. were any particular Congress is a class of cases affect the sub- there which may incidentally but in free States are ject commerce, respect until to act has been an act of covered ground Congress. these is not hostile to the legislation subjects power, if residing Congress regulate commerce; Congress execution of that shall have enacted special regulations such then touching subject, regulations become particular of all exclusive interference on of the States. This is part case Black shown Wilson v. Bird Creek Swamp had Company (2 Pei., State Delaware 250). authorized to erect dam.across creek below corporation tide-water, *44 to drain order a marsh. The of act the was validity drawn that it the was conflict with the question, ground power to of commerce. The of Congress regulate object the work the to authorized State law was the health of the by improve In of court, Chief Jus- giving neighborhood. opinion that “means to tice Mabshall observed these produce objects health and do not (that is, col- come in like), provided they of lision with the the General un- Government, are powers those which reserved to the States. But doubtedly measure this act a authorized stops navigable creek, of must those who abridge rights supposed have been But to use it. this accustomed unless abridgment, comes or a United'States, with the Constitution law the an conflict between the Delaware and its government citizens, affair take no “If court can cognizance.” had Congress which act bore act in which execution case—any passed commerce, regulate of the which was object powers these small State over creeks legislation navigable control feel not much should the tide flows—we into difflculty which THE COHRT OF APPEALS. IN CASES v. Lemmon such act a conflict with would that State law being in saying no such act. The has But passed repug Be Congress void. Constitution Delaware with placed law nancy com regulate on its with power repugnancy entirely several States—a among nations merce foreign with as to affect 'the so ques has not been exercised power has affirmed v. Sturges been The same tion.” principle Wheat, Houston (5 and in Moore v. Wheat., (4 Crowinshield 193), has reiterated been cases, and since Passenger 1); Philadelphia, The Board Wardens Pilot case (Cooley of the rule present application How., 299). argu for concede, case is We will purpose plain. one slaveholding from: that the slaves ment, transportation commerce, act of inter-state which may to another is an Acts federal legislation. regulated by be legally protected that if these so trade, the coasting been regulate passed in a Texas, in trandtu between Virginia had been habeas served, at the time the corpus they vessel, coasting been interfered while through could not have with passing of a a free authority waters navigable at not thus in transit that time. But such State. were commerce act to between has regulate Congress passed any than in carried on or otherwise coast land, when the States facilitate order to commerce that, conceding vessels. But ing has the States, provide precisely among Congress case of trans a as the whose case present—the persons, such intercourse, is the of commercial carried being subject portation in another to convenient vessel coasting port again for the being there landed, purpose view being third *45 to a which fresh on a coasting port, embarked voyage to unexercised final power be their destination—the towas not affect to a would transit, a such law, regulate such enact of all the status of the to deal States with power the existence and before meantime, their within territory carried a to commerce It be law regulate of a law. would such which subject upon land and water—a partly by on partly doit so at all. Should to act has thought proper Congress ALBANY, MARCH, 1860.
Lemmon v. The limit and curtail the of the States hereafter, might authority in a an act case which it such to execute should present of such I re- legislation Congress. interfere with paramount that the of the under law consideration remark, peat to refers commerce has no aspect directly among a It have large important States. would operation upon its within no connection provisions, having cases falling is so far as commercial the com- then, with enterprise. mercial clause the case of concerned, valid; generally under the federal conferred legislation, supposable commerce, circumstances arise Congress regulate might a execution, landed freeing where on our cargo inter-state the course an shores, would voyage, interfere of an act The Congress. state provisions present does however, federal not, raise legislation my opinion, it and the laws of conflict between this State under con- I case, whole have come to the sideration. conclu- Upon that there National Constitution nothing sion or the the State judicial from preclude authorities Congress thus introduced into these slaves declaring territory them at free, setting liberty, the direc- according to referred For of the statute to. tion I foregoing reasons, affirming judgment in favor Court. Supreme am can be restrained J. person his.liberty No Wright, unless for cause shown such this State, legal restraint. act remove from operates subject habeas corpus The pri forumand. enlargement into force public liberty, vate be shown the contrary, cause flows some unless art. 2 R. (Const., 1, §4; necessity. S., 563, legal the writ by restraint cannot be continued id., 565, for ;21 § § unless maintain it time, authority moment the State. force of law within habeas behalf 1852, writ November, corpus In issued Justice colored Superior persons, eight into the cause York, of New inquire in the city Court showed cause that detention. appellant their *46 IN THE 'CASES OF COURT APPEALS. Lemmon v. The People. his slaves of in were wife which State before that Virginia, he and had and time liis wife been citizens there domiciled, she and that held them such from York, Hew transit Hew York to intended Virginia Texas, where through they to establish a domicil. The return to the sub- new writ stated thakthe route and mode of steamer travel was stantially from Hew and thence Horfolk, York, Virginia, port to Texas. In execution of this of travel, new voyage plan and their slaves had reached the and York, Hew they city of a no Texas, were awaiting opportunity voyage intention on their or the colored part eight persons remain in for other or for should Hew York time, any any until than should to take purpose, opportunity present for all to Texas. The whole passage therefore, question, these facts the cause was a is, whether shown one. If legal and the relation of slave owner subsisted in slave which Vir- Lemmon and these between Mrs. colored ginia while persons attend them force of law while commórant there, by within this in the course of State travel Virginia Texas, and Hew York, though sovereign compelled sanction and maintain condition of for slavery pur- cannot effecta universal pose, proscription prohibition itof her then is within territorial cause restraint limits, legal shown: otherwise not. is one question her affecting sovereignty.
As a State she determine sovereign regulate statics or social and civil condition her citizens, every withiii her This description she territory. power she when has declared or possesses exclusively; expressed her will in this no from without respect, authority can interfere, instance of a rightly slave except single from a the Union into her and in escaping territory; because she this, her has, yielded compact, right S. art. (U. has the sovereignty. Const, She undoubted 2.)§ to forbid the status of exist form, or for time, her any purpose, borders, declare that a into her from a brought territory foreign *47 MARCH,
ALBANY 1860. Lemmon v. The under shall be free. If has whatever, she any pretence done then nor neither an African this, negro any person, or white can be held her for black, limits, within moment n time, in condition of It cannot affect the bondage. ques that at some time in her tion, or she State history colony has tolerated on her or that the statushas had soil, ever slavery for without to time or circumstances, legal cognition: regard at her the civil will, condition of her may, change and her and inhabitants domestic policy, proscribe pro- had not that hibit that before existed. I do she say of her free or convert inhabitants citi- description zens into for is to natural slaves; justice slavery repugnant has no of international right, support any principle and is to the law, antagonistic genius spirit republican government. is the natural Besides, condition liberty men, and is world-wide: whilst is local, slavery beginning force, can be and sustained physical only supported by positive law. “not “Slavery,” says violates Montesquieu, and of laws nature civil it also wounds best society; forms of in a where all men are government; democracy equal is of the Constitution.” contrary spirit is not that denied Mew York has exerted her effectually to the extent that the relation of slave owner sovereignty her slave cannot maintained or or citizens, citi- zens other State or nation domiciled her terri- or make halt who reasonable tory, any stay beyond and that this do. she I will not wayfarers, might rightfully here this is not whether inquire virtually conceding stop in the case. It is that urged whole far question had as the State when the case and if gone present arose; I as far as she-can argument ever rightly, comprehend go restraints her without transcending imposed upon sovereignty the Constitution the United violating prin- of nations as intercourse governing ciples show that neither these States. I shall friendly propositions and that in the maintainable, legislation status transit has the case during subject slavery, YI. Smith.—Yol. CASES IN THE COURT OF APPEALS. v. The People. intent and if effect; otherwise, were
escaped when domestic statusas reject suppress a civil as matter of reason and condition social relation, authority in the case of resident or in never transit. strangers upheld far has the State of her How gone expression 1st. casual whatsoever will, access, sovereign slavery, transient shall not be tolerated whatsoever her stay, *48 was and ? first introduced soil negro slavery When estab of as an institution in the Colony York, lished New not had foundation in traceable. It never the law any easily not common and was law. recognized by (Somer nature, 20 Howell's ; Trials, State Yet R., 1; set's S. case, C., 2.) Lofft's in the force of local and law, was con it existed Colony in a mild form sanction in the eastern the same tinued by part York became an sove after State, independent New and sentiment, conscience,how reason public reignty. on were to frown taken until, 1817, steps continued ever, of the government effect its department the legislative As of the 1880. indicative before sen public total abolition with Legislature, in 1820 unanimity, adopted timent, our Congress Representatives requesting resolution oppose into the without Union, State making the admission an therein condition indispensable slavery the prohibition in the recited resolution, admission; preamble an much to be evil deplored. considered slavery that they 1817, against importing, introducing, provided statute State, whatever, into the except pretence or bringing held as therein slaves under cases specified, persons certain these that of cases, was other Amongst States. the laws of our who should be State, an inhabitant being person, or State. He from, through might to or passing traveling him in under held him slavery with person bring take he such came, from which might the State of New but the York; from the State person him with person or in our State not reside continue more should held slavery if such residence were continued months, beyond nine than should be free. These provisions such time, person ALBANY, MARCH, 1860. v. The People. into the introducing
against bringing foreign State, in the case of an of another inhabitant except State, tempora in or this State, were re-enacted rily sojourning passing through this revision Statutes additional “ section: born this State, within whitb Every whether person shall hereafter be colored, who born free; every person this shall be within into free, brought every person this as a as authorized this shall title, slave, except Here be free.” R. S., 656, 6; id., 659, was (1 § § an authoritative and declaration emphatic sovereign condition of all that freedom should be will, only descrip or domiciled resident State, tions persons, under that no should be therein, brought any pretence master, an inhabitant of his another whatever, except by to or from, who was State. traveling passing through left without the Thus even the munici support in the instance of and then law, sojourners, except pal nine months, slave owners period States *49 with their our slaves own. But in passing through 1841, the sanction of the in law even these*cases was municipal taken The in all the sec Legislature, 1841, away. repealed tions Statutes to be Revised allowing brought into the under voluntarily State, circumstances, any leaving still in that no held as a slave provisions person operation, be into should introduced or the State on brought imported, and if should be free. any pretence whatever; in, brought intended to ch. That this was (Laws 1841, legislation in of an reach the case of the transitus of a slave custody to his of a owner, inhabitant slaveholding claiming and the status of in to no basis for form leave legal slavery any for rest the limits of the or to Statei purpose upon, is was secured to evident. law By privilege in or sojourning slaveholder foreign pass temporarily his In 1841 this the State slaves. with ing privilege through is of the taken the affirmative action law-making away by or who, the law So, also, any person power. in this State,, resided of the part whose year family, part APPEALS. OF IN THE COURT CASES The or remove State, might bring year held time to time, lawfully any person him or them, such this State, into might carry person him in slavery, denied This was Legisla out of it. or them with him of the intent and effect repealing The obvious ture 1841. of this the soil to declare every person of 1841 act was been held as slave by he even though State, instance single to be free, of another State, except of the United States held slavery person into this State. should thereof, escape under the laws who as it so far might operate of this legislation, With courtesy citizens slaveholding intercourse with affect friendly do. .to We tribunal, nothing as a we have judicial of the the intent and effect legislation. determine of the however, political but just, of irrational that it not conceived any spirit was remark, based effectuate policy partizanship, propagandism sentiment. accordance with public upon principle, of the State nearly that it been law twenty has fact and* successive changes political power, through years, of a the foundation rests upon public proof cogent in extent to faction. not limited sentiment any party to render condition civil effect legislation (cid:127) in our own society. Liberty slavery, impossible slavery no than the mean more establishment conditions, as civil the means to enforce or the one the other. law, protect status of is sustained and As the supported exclusively this has so held as to the status in been (and by positive if no but on it, her we have law uphold courts), Virginia exist for an cannot it, the contrary, proscribe prohibit *50 instant of time our (4 R., 209; within jurisdiction. Munford's & Of course I mean Hen. 2 Munford, qualifi 149.) that there is no cation, thereto, duty obligation respect on the of the State the Federal Con sovereignty imposed or the rules of international law. stitution, Is there Federal Constitution to hinder 2d. anything her the from own social pursuing policy regulating 621 ALBANY, MARCH, 1860. v. condition of of that are and civil every description persons come her or that jurisdictional limits, within enjoins her of of the status the case duty maintaining slavery of from another of the Union voluntarily brought into her ? It not to be at this territory necessary day" ought has no affirm the the Federal Constitution doctrine, it nor basis and was with the social concern, have, designed and obtain within the relations civil conditions which several is but the States. The Federal Constitution compact of sovereignties, yielding separate independent people those none of the sovereignties rights pertaining in a few cases. territorial limits, except their special respective as its framers nature of This explained compact and since the Federal contemporaneous expounders, to find has common late to strive become Courts, although in this bond Union sustain of Federal something uphold outside of the social relation and condition range particular (Ex Simmons, Wash. parte the laws which give vitality. Com Pet., 508; Prigg C. Grovesv. R., 396; Slaughter, C. 625; Strader v. Graham Pet., 611, Penn., monwealth the status African R., 82, Although slavery 10 How. 93.) in all original time been at some recognized had Federal Consti of the formation at States, period institution, them had abolished tution some others whilst were it; on the eve abolishing others were There three sec are but it with increasing vigor. maintaining to the existence that allude instrument tions whole not in and then under laws contemporaneous history, terms but light explained by as to the institution as local. These and in such way stamp federal are the representation provisions apportioning subd. 2, direct taxation S. art. relation to (U. Const., 1, 3) § held to labor in one State, under “persons thereof into another” art. Con 4, restraining (Const., 2) escaping § “ migration gress, prior prohibiting impor tation of such of the States shall now existing think to admit.” The latter art. (Const., proper provision, § *51 CASES IN THE COURT OF APPEALS.
Lemmon The v. much was earnestness the known, it is with urged delegates of the Southern the two three from view to from the slave trade Congress restrain prohibiting foreign before Slaughter (15 Pet, Judge In Groves v. 1808. 506), McLean the to be the States recognized power thought provision the discretion each at intro- admit or to prohibit, “ into her He of slaves territory. says: duction importation not to be slaves, which was meaning of certain pro- persons, limited to before such States then hibited was existing to admit them. of the think Some States at as shall proper the admission of that time their slaves, prohibited right as the to do so was strongly implied by provision admitted them.” But other States that has provision to ceased has Congress any practical operation. long into States of importation prohibited trade is to be the slave declared the Union, piracy. no it has be to now, show, importance except provision the framers of the was local in' Constitution, view slavery that the over to the States character; belonged and that it to be was receive recognized respectively, the federal but on the all aid from authority; contrary, by after federal was to be means exerted power, possessed, it. The to respect provision apportioning suppress repre- alludes sentation Congress, remotely only impliedly existed in fact States. The repre- “ was to be determined sentative population by adding number of freé those bound including service whole Indians not taxed, a term three- excluding years, all other Ho fifths of duty obligation imposed persons.” there the remotest sanction or nor is States; recognition outside of of slaves of the territorial property range treat them as such. The third laws provision simply of the State' as the federal consent parties compact In of this service. reclamation fugitives speaking Story clause, said, Su- Judge delivering opinion States Court the United Commonwealth Prigg preme nations, no nation Pennsylvania: “By general *52 MARCH, 1860. ALBANY, v. Lemmon The People. as to
is bound to the state of slaves foreign recognize slavery its it is in dominions, found territorial when opposition within in to its and favor of the institutions, subjects own policy is If it does is it, other nations where recognized. slavery a as a and not as matter of international matter right. comity to be The state of deemed a regulation, slavery municipal founded and limited to of the territorial the range laws. This was Somerset’s de case, which was fully recognized It cided before the American from manifest, Revolution. this that if the Constitution had not consideration, contained State in the clause, non-slaveholding Union every would been at declared free all have liberty slaves runaway its and to have them limits, entire immu coming given of their claims masters; course nity protection against have created the most bitter which would animosities, en " * * strife between different States. gendered perpetual The into clause was the Constitution accordingly adopted consent of unanimous the framers of at it; once proof its intrinsic The learned practical necessity.” was judge that the itas stands in clause, saying instrument, with entire ; was it was not as adopted unanimity adopted There were eminent and many originally reported. patriotic men and out both Convention, north and that south, did not was to be contemplate slavery perpetual the States these Union, amongst the illus was trious officer of the from Convention, presiding Virginia. was inconsistent that 'lies at the certainly principle foundation of our In incorporating fugitive goveny^ent. Constitution, Convention provision was careful whiph not to do should sanction of anything imply as as read, legal. originally reported, “legally proffifeion. held to amended out the service,” word by striking ” “ “ and made to read held service or labor one legally the laws thereof.” (See Journal, under Madison's 384; Works, 1589.) ” “ “ substituted for word service was So, also, servitude,” of a on motion latter Virginia; delegate being CASES IN THE COURT OF APPEALS. of slaves. Madison's The term Works, descriptive (3 ” “ “ not used in if the slave is Constitution, phrase, to service or under held labor one State the laws person then the Fede is to be construed thereof,” slaves, meaning treats and not as ral Constitution persons property, and it them as and not as though acts upon property, latter character them given *53 (cid:127)States in is tolerated. It is clear entirely which slavery to of the Convention was averse to sanction the law giving any an that human or slavery, express acknowledgment by implied it is made of and more could be the beings subject property; all manifest from the and" over Constitution, provisions that ultimate from the extinction history, contemporaneous and in the United action States, by legislation slavery 'the State governments (instead adopting devising any was contem means or perpetuating legal machinery it), who of the eminent statesmen patriots many by plated Constitution, and their both the Federal framed contemporaries in to from relation fugitives north south. provision in an intend is the one the Constitution service, that, only his of a own ment, owner supports its is to State. limited other This, terms, special excludes federal intervention case, necessarily every (cid:127) been so the federal This has courts regarded other. always that both doctrine, and the recognize cases uniformly and laws of the United States apply Constitution only from one State and to another fleeing fugitives escaping is this the over the subject slavery that power beyond that their action can several exclusively with the Federal Government. Indeed, not be controlled by Missouri to determine and regu-. exclusive right her was the the status temtory, late persons all this Dred case, beyond Scott judgment point 4 Wash. C. C. Groves Simmons, R., 396; obiter. (Ex parte Graham, Howard, Pet, 508; Strader v. Slaughter, doctrine more disastrous might prove 92.) Any from than that of in the States, for, status of liberty ALBANY, MARCH, I860. v. The People. that it is
the moment conceded that, exercise hy in the Constitution to the Federal granted Government, powers interfere in of the socialand regulation civil rightly condition of within the territorial persons description it is limits of the Union, States not difficult respective ultimate foresee the result. of the Federal Constitution provision conferring commerce regulate Congress several among invoked as restraint States, now action. this
difficult can how perceive provision any applica- tion to the under case consideration. It is not pretended to be claimed held slaves were in transit to nor Texas articles commerce; that, their being with on board a enrolled owner, vessel, alleged coasting licensed under the such vessel laws Congress, was driven, stress into the otherwise, weather waters of navigable the case showed that their State. owner Indeed, had volunta- them into the State; rily brought taking passage his and Norfolk New their York, voyage *54 coasting steamer had and he terminated, was sojourning with city the to start on a them, new awaiting opportunity to voyage It is not the case of Texas. the owner of certainly slaves, to from one slave State another, being passing compelled, by or land accident to touch or in this distress, State. In such our law would not act the case, status of probably, upon the not its within slave, being but as spirit intention; Con- has not undertaken to the internal yet gress regulate slave has even if it to do in no trade, so, sense authority just could to such a case be said raise the of even the of question right inBut no can intervention. the provision view federal empow- to commerce States Congress regulate among affect ering the of the the States over the subject respective power slavery. for the those have contended m righb Even who Congress, the as it is called, under commercial the power, regálate traffic in admit that it is slaves, several com- among for with its State, effectuating view petent system policy slavery, entirely prohibit in the abolition
Smith.—Von. VI. OF IN THE COURT APPEALS. CASES The into her for But slaves, any purpose, territory.
importation or from object police effectuating any promoting apart any is rule over whole with the subject of policy, power and this was so declared States by respectively; Supreme a case in Grovesv. Slaughter (15 Pet., Federal Court, 508), to be that a the Consti- urged which was attempted provision into tution of importation Mississippi, prohibiting conflict with commercial sale, power As was said Chief the Federal Justice Government.. “ in that each of the has a States to deter- case, Taney, mine for itself will will allow this whether to be its limits another (slaves) brought description sale or for either for other also purpose, pre- mode in the manner and which they introduced, scribe condition determine their and treatment within their and to the action of the States several territories; respective either be controlled virtue Congress, cannot subject commerce, virtue regulate power of the United the Constitution States.” conferred by power at tune to was deemed case of v. Slaughter Groves under right Congress, have settled question against the internal claim, trade, the commercial regulate the States to interfere seve- any way under and all themselves, circumstances, rally protect an external evil. .against of each that “the citizens constitutional provision shall to all the and immunities
'State be entitled privileges ” n ofcitizens in S. art. Const., States (U. §2, several on the some bearing ques also invoked having subd. 1), first I think this occa tion of the right. appellant’s *55 that an sion in"the juridical history attempt country to into a has been made torture this provision guaranty of "a to his and hold the slave owner bring into, right The them for State. in, non-slaveholding pro purpose but one and vision was understood having design always to to secure the citizens State, meaning, viz., every they the and immunities privileges (whatever other, every ALBANY, MARCH, 1860.
Lemmon in each to its .accorded might own citizens. be) was intended to a State guard against of its discriminating favor own A citizens. citizen of into Virginia coming New York was to be entitled to all the and privileges immunities accorded to citizens York. New He not to was received treated as an alien or in the enemy particular sovereignty.
Prior to the of the Federal adoption and Constitution, even under the Confederation, kind of that citizenship in the States. Articles of Con prevailed respective federation that the free inhabitants of each of the provided States and from (paupers, vagabonds fugitives justice excepted), entitled to all should be and immunities of free privileges citi zens in the and the several each State States; should people free and to and have from ingress egress and should all therein of trade and enjoy privileges commerce, to the same subject duties, restrictions as impositions inhabitants thereof, This (Art. article limited respectively.” to the free inhabitants of the States, implying there inhabitants of the were States Confederacy free, and not to were immunities whom privileges were But the framers extended. Constitution when came to conferred re-model this exclusive clause, having power upon the Federal commercial Government regulate intercourse, obligation upon imposed respectively, service, being deliver up fugitives escaping unwilling, federal even sanction, impliedly, authority, legality omitted the of the state of provisions slavery, article in relation to commercial intercourse, substituted of each “the free inhabitants State,” for the words, words, “ made the to read the citizens each State,” provision If the in the Constitution. can be as it stands provision now to confer a citizen construed Virginia privilege there is no York, slaves New when holding aud the is denied our citi own status, uphold privilege Story Court and the Federal fell into then zens, Judge that if it not for the error were fugitive grave opinion, at New York would been have liberty provision, *56 CASES IN THE COURT OF APPEALS. v. The People. all declared free within her coining limits, them entire given did immunity protection; so, also, Taney Chief Justice mistake the character of the instrument, that there in the when Constitution declaring nothing con trol the action relation to within her slavery limits. But it seems work of supererogation pursue inquiry. has been doubted that the never yet sovereign vested powers in the State remain intact and governments unimpaired, except so far as to the of the United they granted government States and that the latter can ; claim no government powers are not to it which either granted Constitution, expressly or is no There by necessary implication. grant power Federal and no Government, the Constitution from provision which can be over subject implied, in the case of a States, service. except single fugitive it is with the has general been except limited the Federal and this specially Constitution; special limitation has been considered as a forcible rightly implica tion in the existence proof general power States. considered in So was (14 v. Coquillon Lunsford Martin's a case R., arising State, 403), slaveholding States was to make authority fully recognized laws the relation of master and Such dissolving slave. a con struction Constitution and law United States, say can court, work to no for the acts one, injury principle on the and volentinon willing, injuria. fit n Is the 3d. rule principles comity, law, force having State, required within public recog- nize and relation of master and between support slave, in or her strangers sojourning through ? passing territory if at The relation under the exists, all, Virginia, it is not claimed there is rest- any paramount obligation this State to and administer the recognize laws Vir- ing her if contrary within territory, ginia repugnant to her She her interests. volunta- prejudicial policy that the shall her concede foreign rily operate juris- to the extent such concession, becomes a diction, *57 ALBANY, MARCH, 1860. v. The People. be her can however, of law. never municipal Comity,
part exercised in and in of our own laws; deciding violation to our laws whether we look requires act, own comity any for There can of the be no authority. application principles the State when refuses comity, absolutely recognize effect to the or the relation give establishes, foreign law, inconsistent her her with own and being laws, contrary The the hi will State policy. policy respect toleration of transient the form, slavery, however her within has been stay, territory, distinctly unmistakably the Before act of expressed. 1841, our statutes repealing the relation master operated dissolve absolutely and make the latter a of a slave, freeman, case except master and inhabitants of another slave, State, temporarily the State. In the latter the passing cases, through though master could no obtain affirmative aid from the law municipal enforce restraint the of the slave, liberty State, yet exercising the relation comity, to exist expressly permitted for the of nine months. To space this extent the con- State sented that the foreign should have effect slavery within her and the limits, relation master and not slave was to be force dissolved unless law, municipal stay was continued nine months. There can be no doubt beyond that without this the statute express 1830 would exception, acted the status upon álave vol- directly brought into the him made a freeman. As untarily a mat- ter of then comity, however, will State was, case of an inhabitant of another State passing through his our status latter territory slaves, should not affected our inBut, be laws. actual State, by accorded to legislation, abrogated permission slavery and declared it to be her transit, will, under all during that, into the slave State circumstances, voluntarily brought be and that status should not be free, should tolerated her It is to establish the rule, borders. courts in and exercise and not the her she behalf, comity, she exercise it. courts have not, chooses, ur may IN OF CASES THE COURT APPEALS. Zemmon v. The but the whether determining inquired comity indicated her actual policy legislation. has her status of declared, Legislature, African through and her transform the into exist, shall he her a freeman instant soil brought voluntarily upon is that neither principles comity strangers Her will shall the nor her territory, way, passing through *58 and be or owner relation of slave slave upheld supported. of of law therefore, recognizing Instead, extending any a slaveholder her towards with passing through comity territory his she refuses to extend such slaves, recognize comity, law of the of the which sustains the relation allow sovereignty to as a be administered of the of the master and slave part law to in the owner, if effect, foreign State. She says, you the State, pretence whatever, within bring your in shall the nor way neither municipal by comity to the the relation foreign law; in and let place law give the law foreign municipal and sustained only by established held the before and slaves shall terminate, shall in men their natural relations as and as her soil stand upon to that she this extent if It is conceded gomay freemen. on her action the Federal Constitution; no restraint by there be I her and actual think, extent, legislation to this policy has But if no that she there actual gone. indicate were clearly case of the transit, the reaching policy legislation the of and the aid of law, forbid sanction would State status in the case of force, proscribed strangers public the status, is and unnatural unjust our territory. within aims to State suppress, relation, policy which if statusbe at all. at least part, upheld her policy fails, Upon rule that she the Virginia the same would permit lady her case to with she through slaves, territory pass, to allow the slave his trader, constrained gang, would the risk of disorder at which would inev- public even pass, a transit. The State deems attend such that itably public internal domestic interests, her require safety peace, condition of a social violates law total suppression MARCH, I860. ALBANY, declared status, Bill Rights, 15); nature (Virginia §§ “ of to be such nature case, Sommerset's Lord Mansfield, introduced on any reasons, moral being is incapable the predominance originates physical or politicalthat the mere of social predominance and is continued by force, but the or obedient to no will law the subject knowing force, issue all of the mis whose involved master, a statuswhich the of nations law treats fortune parent; no out finding on force right, support against resting establishes it. law which Ele (Taylor's side municipal 20 Howell's case, Civil Law, 429; ments Sommerset's should not the Devereaux's R., Why Trials, 2; her ? She is jurisdiction be able utterly suppress rule which nations, not permits required and their transit strangers property through friendly Men not it. subject uphold property by that of the nor State in law, law, such by any except the Federal the status even exists; Constitution, which been made some guard supposed *59 for in that the of a human race; particular rights beings, protect are or treated as color and without regard-to country, persons exacts no law obligation not as public property. the law makes men to enforce which the municipal that the law stand ; strangers subject property condition as men. in natural Nor it their can our soil be to which attributes principle pretended justly to fix status the domicil civil law of persons, on the State to rests recognize and obligation uphold relation her slave owner territory within as it So far be done may without strangers. between preju interests, she be to her domestic to dice may required recog status abroad in existing nize reference consequences her own it jurisdiction; within when is to subjects brought is her there as a limits, domestic permissible regu within as an law authentic foreign lation, recognize origin of the actual status. (Story's Laws, 51, 89, support §§ Confl. But no 104, 620, further than 114, they CASES IN THE OF COURT APPEALS
Lemmon v. The consistent with her own not laws, o: repugnant judicial ' to her domestic is the interests, policy equired effect these of the domicil. give laws conclusions My are, cause legal was shown the colored restraining in whose behalf the persons, writ of habeas of their carpus issued, and that were liberty; they I have aimed to examine the rightly discharged. question in a involved and not legal, aspect; political view, my judgment, judicial tribunal to take. becoming Our declare these be and there is free; nothing can claim the which of law within this authority State, by ¡Neither which held as they slaves. the law of nature nor the nations, or Federal or Constitution, impose duty on the State maintain state obligation hez slavery form under or to territory, any circumstances, recog- nize and effect to the law alone the give Virginia, by relation nor does find exists, ór any support recognition the common law. Court should be affirmed. judgment Supreme Bacon and
Davies, concurred. Welles, Js., J. A considerable Clerke, proportion (Dissenting.) in this case was discussion not at all observations, occupied by to a nor it; were calcu- proper disposition necessary lated, slightest to aid the degree, court my opinion, for its solving questions presented determination. or in Whether agreeable opposition it is whether nature; whether morally right wrong; whether African race inexpedient; expedient .are *60 their and moral to this organization, physical adapted, whether can be induced to com- condition; labor only by whether the fairest and most fertile of the ; portions pulsion near within the zones—can lying tropical earth—those extent cultivated that if race, whether, be any alone this labor, their therefore, large portion globe without Creator, of the manifest continue will, contrary design ALBANY, MARCH, 1860. v. The People.
or become a sterile waste, questions interesting very domain of or or but ethics, theology, political economy, to the discussion the purely legal totally inappropriate for our consideration. Those now ques- questions presented tions of this has are, 1st, whether Legislature declared that all their into this masters brought by under for a State, moment, circumstances even whatever, shall be if it has had it the constitu- free; 2d, so declared, tional to do so.
1. The act in declares 1830, re-enacted 1817, passed that no held as a be introduced, slave shall person imported, into this brought State, whatsoever, except any pretence in the cases therein shall such specified, every person be free. One cases an allows person, excepted inhabitant this State, to or from, traveling passing through his and take him slave here again; bring away he months, if the continues here more than nine but an act shall be free. These were exceptions repealed in rela- Revised Statutes passed May amending tion to held there be Although persons slavery. appears no those I am not acts, ambiguity language surprised that some has to their been relation incredulity expressed it be could be meaning. What, asked, entire may plausibly with the object Legislature interfering persons pass- our ? It not to be territory priori, ing through supposed one member of the brotherhood of States would adopt for the legislation purpose affecting whom, a social or has no concern. political community, possible If the to remain slave were here for any time, legislators may, fear some indeed, some demoralization detriment, from his could what the most presence; nervous fastidious interests guardians public apprehend persons pass- ¡Neither the State. could it add ing through one or tittle jot the sum To world. therefore, suppose, be that the said, acts referred to aimed at such persons, would the most imputing wanton spirit aggression who them. legislators be mere passed would propa- Smith.—Vol. YI. *61 ' CASES IN THE OF COURT APPEALS. v. The People.
gandism, which we not should suppose any community who were not in a capable, condition of excite- revolutionary and ment, fanatical like exaltation, French people, their during first when undertook force revolution, they their theories of on the other nations of spurious democracy its Europe, for more than disturbing peace twenty years, causing wide-spread desolation. notwith- slaughter But, all these standing suggested reasons, plausibly the intent of considering Legislature, language acts referred to is too doubt of that to admit plain It intent. all intended to declare that evidently slaves vol- into this untarily brought State, under circumstances should whatever, become free. instantly 2. But it ais of much whether question greater difficulty, do had the so. Legislature constitutional power New York is of free and a member a sove- confederacy limited united for States, certain reign purposes, specific under solemn And this not written covenant. covenant establishes also, regard of States, only confederacy its most material the char- this functions, gives confederacy" of a The Constitu- acter national government. homogeneous tion is not alone federal alone the almost national; but, its divine wisdom which over formation, while presided framers desired to independence sovereignty preserve of each State within the domestic sphere ordinary legisla- this tion, designed incorporate yet evidently people as a nation, into one in its character member nations, internal, moral, but also social great family effect of the Union themselves. political people essential to that there should be as design grand an intercommunication free and between uninterrupted and citizens of the different States, inhabitants between and citizens inhabitants of the same State. people “in form United order to therefore, more perfect ” than had union existed under the old declare Confederacy, the Constitution under among things provide, which we have now the privilege Congress living,
ALBANY, MARCH, 1860. v. The People. to the commerce sev- among shall have regulate (alone) and to establish uniform rule naturalization, eral States; to coin the subject money uniform laws bankruptcies; of. to national medium; regulate as the genuine circulating the and estab- measures; to fix standard weights value; and lish post-roads; progress post-offices promote for limited times to science and useful arts, securing their authors and inventors respective exclusive no tax or duties and It also that discoveries. provides writings and that no State, on articles shall be laid exported any of commerce or shall be by any regulation preference given, that another; to the of one State vessels revenue, over ports one not be clear obliged enter, or from shall State, bound shall that full faith credit duties in another; given or pay and records acts, judicial in each State proceed- public other that citizens each State shall State, every ings immunities of to all citizens in be entitled the privileges this States. The Constitution, people, adopting several intended to form a in its that more declare preamble very had them under old union than bound Articles of perfect the fourth article of which cleclared that the Confederation, mutual and inter- to secure and better friendship perpetuate the different the free inha- States, course among people entitled to all bitants of each should be privileges and immunities of free citizens in several that States: free to and from ingress of each should have people therein all the and should State, enjoy privileges the inhabitants thereof commerce, trade respectively, duties, restrictions; to the same subject impositions pro- so far shall not extend as to those restrictions vided that pre- into State, imported the removal property, vent the owner an inhabitant. Most of which other State who Constitution adopted present assuredly, people th/ the intercourse between people not intend did restricted than limited or th# should be more different States in the Articles of provided in their capacity, corporate as we On the contrary, they contemplated, Confederation. IN THE CASES COURT OF APPEALS. v. Lemmon a more and a more seen, union, and unre- perfect perfect stricted secured it intercourse; they amply provi- sions I have referred. to which
Is it consistent with purpose perfect union, per- unrestricted fect and intercourse, which the property into another citizen of one State brings purpose it to a State where he intends to passing through take up *63 be confiscated in his the shall residence, which through shall he is or be declared to be no passing, property, from his control? If liberated he, indeed, his brings property the of his design with taking residence in voluntarily, up or for there State, another sojourning of any purpose business, he even for a brief subjects himself to period, the legislation to his of that State, regard personal rights and the rights relating property. the the of citizens of one nations, law
By government have the a through right passage territory another, peaceably, or and the latter business for no pleasure; acquires over right This or his is such property. privilege yielded between person each other nations without towards com- foreign any express unwritten is law of principle nations. pact. this much more Of course on principle imperative the than between nations in foreign States their several relations For it can be other. each clearly deduced, towards we have on the which their union is based. seen, compact There- this of the law of nations making principle fore, applicable exists between the which several the compact States, we say, one citizens any the that right passage of another, territory business peaceably, or through the latter no such over acquires right person pleasure; decided But who this case judge his first property. I reasoning, whose here permitted instance (by say, influenced in at erroneously voting general term I was Court first while the Supreme district), admitting of the law which I nations, have quoted, the principle saya which writers on the law nations property, of, merchandise inanimate and that speak things, ALBANY, 1860. MARCH, v. Lemmon is not to the slaves, therefore, who, applicable
principle, he cannot be nations, contends, nature and property. no com- between whom nations, express undoubtedly, Foreign make this But can at exception. any exists, liberty pact under this confederacy, compact of the States make distinction ? do same ? Can them, unites under federal insist, one State can words, In other citizens of other. in reference to rights compact, of such citizens, as the that there is no such thing labor the service and person. their own States, is held to service This is and whether person property; it matters it is for life, not; labor for limited period, as an institution existing still property—recognized Constitution, framed the who binding upon present people should unless Constitution be modi- forever, their posterity common consent. fied or dissolved by rendered the decision The learned who the first judge admit, in this his case, would, course, instance own *64 of the if the law nations was right that, reasoning, by recog the in would slaves, nized to to principle apply property as to and its of other, well property inviolability species was owner whenever passing would upheld the nations. Can it of of be dis family through any territory this the Union that the States towards obligations puted than those of the other are each less imperative family each if a other, nations would be towards right species the compact was implied by recognized by property therefore, their conduct is the position, regulated. can be main term, learned general only judge, on the which binds tained supposition compact does not labcr and recognize States together that each State is at slaves as service property; liberty in this States, matter, to act towards to its according other own in relation justice opinions expediency particular such be, therefore, mora holding property. necessary- what were and what though briefly, particularly, inquire been the States, had circumstances in relation original CASES IN THE COURT OF APPEALS. v. The People.
to this at the time of subject, of the Con. adoption present stitution; what was the common in relation to understanding out it, in debates pointed Convention, what does the Constitution itself, by express provisions necessary indicate on this implication, ever-important subject. this Constitution When was the deliberate adopted con- sent of the States and the existed in people, slavery every ' Massachusetts and except New It had Hampshire. in existed all the New colonies from England a very early The four colonies of Massachusetts period. Bay, Plymouth, Connecticut New had formed a Haven, confederation, other which, had among things, with each stipulated “ for the other restoration of servants, to em- runaway and,” of Mr. Curtis language Constitution ploy (History of the United 2d “there is vol., 453, undoubted 454), that African as other slaves, evidence persons servitude, in this included were provision. Massachusetts Slavery not been confined but included Africans, had Indians of our race for war, condemned crimes captured of Massachusetts held and colonists The early practised it,” Moses.” said the same writer in regarded “They “ and sell as lawful slaves taken note, buy war, lawful judicial sentence, or reduced servitude them placed as those same given under the Mosaic privileges law.” existed had all the long period Slavery at the time formation of the Constitution colonies, to exist for a to continue time in the long likely greater was of them In five the States. com- population, number race, numerous, African while very posed *65 in this few.. condition was comparatively were States they the the States asseinbled that representatives of things for their more and for union, the perfect a Constitution frame of their from external rights, common preservation Their internal deliberations from aggression. but attacks, that and acknowledgment the conviction property began all extent the to a nearly States; existed great in slaves to consider whether the necessary became popu- soon MABCH, I860. ALBANY, Lemmon, v. The People. They in the ratio of included representation. be
lation should on a satisfactory provision in order to make must be regarded, of the Constitu to the completion this indispensable subject, “ In framing' asor both. chattels, as or as either tion, persons soon as the as equal it was Union, necessary, equally new to a should States give place of the ity representation inha regard representation, proportional unequal in both other capacities, bitants one capacity, their and to which were found, the States which they leave Union. out matter of was a grave importance, position resul And was what S., 20, Hist. Const. U. (Curtis' tha and deliberations? Undoubtedly, of those convictions institution, deemed a local depending should be while slavery determine each State to what persons community in the civil and rights share political should ol that Constitution, recognized right fully in the continue and the States allow property labor slaves. service more on Constitution bearing directly portions of the are the 3d subdivision 2d section subject 1st subdivision of the 2d and the 3d section of the 4th
article, The former relates article. apportionment represen- and direct taxes, necessarily compelling tatives discrimination the different classes inhabitants. It was between contended, of some northern that States, on behalf slaves ought in the not to be included numerical rule representation. are considered as was Slaves, contended, and not property, to be and, therefore, ought esti- comprehended persons, on which are founded taxation, mates and to property, which is excluded representation, regulated by census of the southern representatives persons. hand, contended that slaves were not considered merely also considered as property, were ; in his on this and Mr. subject Jay, paper Federalist, which, recollect, before the submission of published “ for ratification Constitution the States, the true says state of the case of both is, these they partake qualities; being *66 IN THE COURT OF CASES APPEALS. v. in our as considered some and in respects persons, “ as The Federal he respects property.” Constitution,” adds, decides with on the case great “therefore propriety our it slaves, when them in the mixed character of views per- sons and property.”
But in to addition if this, can be it has anything necessary, been in the celebrated adjudicated Bred in a Scott court case, whose decisions on this that the Con- subject controlling, stitution of the United States recognizes slaves property, and is this an essential element the decision. Chief Justice who delivered : court, opinion says Taney, “ only provisions point two which to them and include them, treat property, them as and make it duty of the government protect to it in race, no other relation to this to power, be found in the Constitution is a and as it government special, delegated powers, authority no beyond provisions these two can constitutionally be The government exercised. the United any States had no interfere for other purpose but rights protecting owner, leaving it altogether with the to deal race, emancipated States with this whether or not, several as each think may justice, humanity, and the safety interests and of society may require. The intended this evidently States to reserve exclu- sively to themselves. “ one, No we presume, supposes change public opinion feeling, in relation to this race, unfortunate in the civilized of Europe nations country, give this should induce the court to the words the Con- more liberal construction their favor than stitution were intended adopted. to bear when instrument was framed and Such an argument altogether would be inadmissible tribunal called on interpret it. provisions If of its are deemed is a unjust, prescribed there mode itself, by the instrument it it amended; while remains it unaltered, must be construed now as it at was understood the time of its adoption. only words, not the same in but the same in meaning, and delegates powers and and government, same reserves secures citizen; and as it rights privileges long the same continues to its present form, speaks exist it not in the same words, but with meaning the same spoke intent with which it when came from the hands of voted framers, adopted by people was Any States. other rule of construction abrogate judicial would United court, character and. make it the mere reflex of the popular opinion passion day. court This created the Constitution for purposes. Higher graver such trusts have been confided it, path falter in the of duty.” must not besides Moreover, necessary implication avowed *67 ALBANY, MARCH, 1860.
Lemmon v. The People. 3d of subdivision the 2d article section, 1st, purpose the National itself Constitution, language recognizes condition of and direct says: slavery. “Representatives taxes be shall the several States, which apportioned among shall be included within this to their Union, according respec- which numbers, tive shall be determined to whole by adding number of free bound those for a service persons, including term of and Indians not years, three-fifths excluding taxed, all other other ? The are persons.” What words persons in direct contrast free and employed persons, indisputably mean not It has asserted, free. been an air of persons with ” “ that the is not word slave in the Con- triumph, employed This was a matter of stitution. I about taste, which suppose, the members of the did not think Convention it worth while had more contend. and higher They practical purpose than to strife about a indulge any word; were they dealing with instead of realities; and, those things—with calling who, “slaves,” and apportionment representatives direct were to added to taxes, free called them persons, “ other ”—of course not free. persons
If, law of the citizen of one then, nations, government has a what is right passage recognized property by that law, and through another, that territory peaceably, too the latter’s without of control over the acquiring any right is not citizen of State of this person con- property, under the it is entitled, federacy compact upon founded, to a other passage through territory with what that without the recognises compact property, latter’s of control over any right acquiring property. not less
Surely, compact sovereignties obligatory than of nations on law those who parties it, one in Is the of the other or subject it. ? derogation does it not rather and render more magnify precise tangi- the duties and ble, greatly extend, obligations imported of nations This law ? inviolability pro- of the citizens of perty States, through while passing territory analogy principle of free of the
Smith.—Yol. YI. IN THE COURT OF APPEALS. CASES v. The People. in no inter- which I have nations, adverted, way clearly
feres with each over those authority per- supreme come of its sons within the dominion. range things law, universal sovereign independent community every By dominion has over every supreme person complete there for within its purpose passing thing territory, *68 of from in the ambassadors or not there it, through capacity or their nations, servants. foreign to accorded the citizens is that the But, asserted, privilege to unmolested their nation with of one foreign pass property is founded other, the through territory merely the nation ter- this is meant that within whose If by comity. is is not of a confiscated, the stranger respon- ritory property is an the idea incorrect. Such for its acts that sible respect, cause for a resort to the method be valid only by act would after remonstrance or can obtain redress nego- nations which is that if it meant these words fails; but import tiation can as tribunals administer law declared only the judicial of their own law-making nation, particular by nation can seek redress the injured peaceable by appeal- to to the executive, through law-making power, ing But, as I shown, correct. relations the proposition of this Union the different States towards each other are of and more nature than those a much closer between positive each other. For nations towards many foreign purposes they them is war between and this nation; one legally impossible; nations, recognized by comity, impliedly ripens, these into an cementing conventional compact express is not to be enforced an to arms, which appeal obligation, and enforced the judicial but to be tribunals. recognized decided error into which who this casein the The judge instance consisted fell, first because the' law of supposing, as refused recognize nations property, several this at do Union were "States liberty same; forgetting the latter are (cid:127).that the which in their compact, by governed each other, towards modifies law of relation nations in each while at particular respect; liberty MABCH, 18C0. ALBA2ÍY, Lemmon v.
abolish, inhabitants its in reference own or retain slavery its expediency its sense borders, own intercourse its it is not dealings dictate, permitted the right inhabitants or their ignore with other States transitu, from the labor and service property the same into fallen those States- Court having Supreme their order should be reversed. error, I will briefly To misapprehension, avoid possibility hold in the I foregoing opinion: which positions recapitulate to all come within is at in reference who Every liberty, in it for abode their intent taking up territory, can or be held as to declare cannot time, what any length the law As, however, agreement property. implied the intercourse separate regulates independent each all to the citizen nations towards other, things belonging are ex- nation, law, recognized anyone property in their passage territory other, empt through all interference and the latter; control of so, fortiori, by *69 the and intercourse which positive compact regulates dealings of these States each other, things towards belonging that citizen of one com- State, recognized property by of their the pact, exempt, through passage territory are. from interference and of all control the latter. to the labor and held in service right slavery, is the Constitution recognized property incontestably is termed the United States. The what comity right yielded under the accordance nations, law with ripens, necessary of the Constitution of the declared and tenor Uni- the purpose to its into a essential con- obligation, ted conventional and as an of federa- instrument thorough operation templated the national of the While violation government. right tive under nations, is the what termed comity yielded abe the circumstances, just war, under certain cause would, out this are conventional obligation properly growing rights tribunals, which judicial cognizance and enforce. to recognize bound this State
That the act Legislature portion IN OF CASES THE APPEALS. COURT
Lemmon v. The declares that a into it which to a brought belonging per- an son not inhabitant itof shall be is free, unconstitutional so far as void, to a citizen of other State applies .this where the to Union, service and property labor of slaves is this exists, who passing through State, and no who has intention of here moment remaining longer than his exigencies journey require. J.,Ch. observed that since substance, the last Comstock, term of his time had been court, wholly in an occupied at examination of other causes that term. To argued this case, he to therefore, had been able yet attention give which He had no hesitation might j ustify. importance declaring it to his that of this on opinion legislation State, which in the case depends, directly question opposed rules of which justice ought regulate intercourse comity of this and he Union; between States was not prepared does not hold such violate legislation obligations the Federal all the States Constitution. imposed With- the decision out, which a however, wishing delay majority of his he brethren contented make, were himself prepared from the judgment. dissenting J. I been want of time prevented,
Selden, of other duties, this pressure case giving to its careful examination due and to importance, elaborate able counsel, am not arguments pre- to determine therefore, whether act of pared, definitely 1841 is is not conflict with any provisions express Constitution. But United States however I can- be, *70 not but it as a those violation regard gross principles should at times all justice which bur pervade comity as inconsistent with inter-state well legislation, wholly of our While, national I am spirit therefore, general compact. at this time to such reasons would give prepared justify am to be I void, me holding equally unprepared the conclusion concur asso- majority my ciates have arrived. affirmed.
Judgment