March Term, 1860
Charles O'Conor, for the appellant.
Joseph Blunt, for The People, respondents.
William M. Evarts, for the respondents.
The petition upon which the writ of habeas corpus was issued, states that the colored persons sought to be discharged from imprisonment were, on the preceding night, taken from the steamer City of Richmond, in the harbor of New York, and at the time of presenting the petition, were confined in a certain house in Carlisle street in that city. The writ is directed to the appellant by the name of "Lemmings," as the person having in charge "eight colored persons lately taken from the steamer City of Richmond, and to the man in whose house in Carlisle street they were confined." The return is made by Lemmon, the appellant, and it speaks of the colored persons who are therein alleged to be slaves, and the property of Juliet Lemmon, as "the eight slaves or persons named in the said writ of habeas corpus." It alleges that they were taken out of the possession of Mrs. Lemmon, while in transitu between Norfolk, in Virginia, and the State of Texas, and that both Virginia and Texas are slaveholding States; that she had no intention of bringing the slaves into this State to remain therein, or in any manner except on their transit as aforesaid through the port of New York; that she was compelled by necessity to touch or land, but did not intend to remain longer than necessary, and that such landing was for the purpose of passage and transit and not otherwise, and that she did not intend to sell the slaves. It is also stated that she was compelled by "necessity or accident" to take passage from Norfolk in the above mentioned steamship, and that Texas was her ultimate place of destination.
I understand the effect of these statements to be that Mrs. Lemmon, being the owner of these slaves, desired to take them from her residence in Norfolk to the State of Texas; and, as a means of effecting that purpose, she embarked, in the steamship mentioned, for New York, with a view to secure a passage from thence to her place of destination. As nothing is said of any stress of weather, and no marine casualty is mentioned, the necessity of landing, which is spoken of, refers, no doubt, to the exigency of that mode of prosecuting her journey. If the ship in which she arrived was not bound for the Gulf of Mexico, she would be under the necessity of landing at New York to reëmbark in some other vessel sailing for that part of the United States; and this, I suppose, is what it was intended to state. The necessity or accident which is mentioned as having compelled her to embark at Norfolk in the City of Richmond, is understood to refer to some circumstance which prevented her making a direct voyage from Virginia to Texas. The question to be decided is whether the bringing the slaves into this State under these circumstances entitled them to their freedom.
The intention, and the effect, of the statutes of this State bearing upon the point are very plain and unequivocal. By an act passed in 1817, it was declared that no person held as a slave should be imported, introduced or brought into this State on any pretence whatever, except in the cases afterwards mentioned in the act, and any slave brought here contrary to the act was declared to be free. Among the excepted cases was that of a person, not an inhabitant of the State, passing through it, who was allowed to bring his slaves with him; but they were not to remain in the State longer than nine months. ( Laws of 1817, ch. 137, §§ 9, 15.) The portions of this act which concern the present question were reënacted at the revision of the laws in 1830. The first and last sections of the title are in the following language:
"§ 1. No person held as a slave shall be imported, introduced or brought into this State on any pretence whatsoever, except in the cases hereinafter specified. Every such person shall be free. Every person held as a slave who hath been introduced or brought in this State contrary to the laws in force at the time, shall be free."
"§ 16. Every person born in this State, whether white or colored, is free. Every person who shall hereafter be born within this State shall be free; and every person brought into this State as a slave, except as authorized by this title, shall be free." ( R.S., part 1, ch 20, tit. 7.)
The intermediate sections, three to seven inclusive, contain the exceptions. Section 6 is as follows: "Any person, not being an inhabitant of this State, who shall be traveling to or from, or passing through this State, may bring with him any person lawfully held in slavery, and may take such person with him from this State; but the person so held in slavery shall not reside or continue in this State more than nine months; if such residence be continued beyond that time such person shall be free." In the year 1841, the Legislature repealed this section, together with the four containing other exceptions to the general provisions above mentioned. ( Ch. 247.) The effect of this repeal was to render the 1st and 16th sections absolute and unqualified. If any doubt of this could be entertained upon the perusal of the part of the title left unrepealed, the rules of construction would oblige us to look at the repealed portions in order to ascertain the sense of the residue. ( Bussey v. Story, 4 Barn. Adolph., 98.) Thus examined, the meaning of the statute is as plain as though the Legislature had declared in terms that if any person should introduce a slave into this State, in the course of a journey to or from it, or in passing through it, the slave shall be free.
If, therefore, the Legislature had the constitutional power to enact this statute, the law of the State precisely meets the case of the persons who were brought before the judge on the writ of habeas corpus, and his order discharging them from constraint was unquestionably correct. Every sovereign State has a right to determine by its laws the condition of all persons who may at any time be within its jurisdiction; to exclude therefrom those whose introduction would contravene its policy, or to declare the conditions upon which they may be received, and what subordination or restraint may lawfully be allowed by one class or description of persons over another. Each State has, moreover, the right to enact such rules as it may see fit respecting the title to property, and to declare what subjects shall, within the State, possess the attributes of property, and what shall be incapable of a proprietary right. These powers may of course be variously limited or modified by its own constitutional or fundamental laws; but independently of such restraints (and none are alleged to exist affecting this case) the legislative authority of the State over these subjects is without limit or control, except so far as the State has voluntarily abridged her jurisdiction by arrangements with other States. There are, it is true, many cases where the conditions impressed upon persons and property by the laws of other friendly States may and ought to be recognized within our own jurisdiction. These are defined, in the absence of express legislation, by the general assent and by the practice and usage of civilized countries, and being considered as incorporated into the municipal law, are freely administered by the courts. They are not, however, thus allowed on account of any supposed power residing in another State to enact laws which should be binding on our tribunals, but from the presumed assent of the law-making power to abide by the usages of other civilized States. Hence it follows that where the Legislature of the State, in which a right or privilege is claimed on the ground of comity, has by its laws spoken upon the subject of the alleged right, the tribunals are not at liberty to search for the rule of decision among the doctrines of international comity, but are bound to adopt the directions laid down by the political government of their own State. We have not, therefore, considered it necessary to inquire whether by the law of nations, a country where negro slavery is established has generally a right to claim of a neighboring State, in which it is not allowed, the right to have that species of property recognized and protected in the course of a lawful journey taken by the owner through the last mentioned country, as would undoubtedly be the case with a subject recognized as property everywhere; and it is proper to say that the counsel for the appellant has not urged that principle in support of the claim of Mrs. Lemmon.
What has been said as to the right of a sovereign State to determine the status of persons within its jurisdiction applies to the States of this Union, except as it has been modified or restrained by the Constitution of the United States ( Groves v. Slaughter, 15 Pet., 419; Moore v. The People of Illinois, 14 How., 13; City of New York v. Miln, 11 Pet., 131, 139.) There are undoubtedly reasons, independently of the provisions of the Federal Constitution, for conciliatory legislation on the part of the several States, towards the polity, institutions and interests of each other, of a much more persuasive character than those which prevail even between the most friendly States unconnected by any political union; but these are addressed exclusively to the political power of the respective States; so that whatever opinion we might entertain as to the reasonableness, or policy, or even of the moral obligation of the non-slaveholding States to establish provisions similar to those which have been stricken out of the Revised Statutes, it is not in our power, while administering the laws of this State in one of its tribunals of justice, to act at all upon those sentiments, when we see, as we cannot fail to do, that the Legislature has deliberately repudiated them.
The power which has been mentioned as residing in the States is assumed by the Constitution itself to extend to persons held as slaves by such of the States as allow the condition of slavery, and to apply also to a slave in the territory of another State, which did not allow slavery, even unaccompanied with an intention on the part of the owner to hold him in a state of slavery in such other State. The provision respecting the return of fugitives from service contains a very strong implication to that effect. It declares that no person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, c. There was at least one State which at the adoption of the Constitution did not tolerate slavery; and in several of the other States the number of slaves was so small and the prevailing sentiment in favor of emancipation so strong, that it was morally certain that slavery would be speedily abolished. It was assumed by the authors of the Constitution, that the fact of a Federative Union would not of itself create a duty on the part of the States which should abolish slavery to respect the rights of the owners of slaves escaping thence from the States where it continued to exist. The apprehension was not that any of the States would establish rules or regulations looking primarily to the emancipation of fugitives from labor, but that the abolition of slavery in any State would draw after it the principle that a person held in slavery would immediately become free on arriving, in any manner, within the limits of such State. That principle had then recently been acted upon in England in a case of great notoriety, which could not fail to be well known to the cultivated and intelligent men who were the principal actors in framing the Federal Constitution. A Virginia gentleman of the name of Stewart had occasion to make a voyage from his home in that Colony to England, on his own affairs, with the intention of returning as soon as they were transacted; and he took with him as his personal servant his negro slave, Somerset, whom he had purchased in Virginia and was entitled to hold in a state of slavery by the laws prevailing there. While they were in London, the negro absconded from the service of his master, but was re-taken and put on board a vessel lying in the Thames bound to Jamaica, where slavery also prevailed, for the purpose of being there sold as a slave. On application to Lord MANSFIELD, Chief Justice of the King's Bench, a writ of habeas corpus was issued to Knowles as master of the vessel, whose return to the writ disclosed the foregoing facts. Lord MANSFIELD referred the case to the decision of the Court of King's Bench, where it was held, by the unanimous opinion of the judges, that the restraint was illegal, and the negro was discharged. ( The Negro Case, 11 Harg. S.T., 340; Somerset v. Stewart, Lofft, 1.) It was the opinion of the court that a state of slavery could not exist except by force of positive law, and it being considered that there was no law to uphold it in England, the principles of the law respecting the writ of habeas corpus immediately applied themselves to the case, and it became impossible to continue the imprisonment of the negro. The case was decided in 1772, and from that time it became a maxim that slaves could not exist in England. The idea was reiterated in the popular literature of the language, and fixed in the public mind by a striking metaphor which attributed to the atmosphere of the British Islands a quality which caused the shackles of the slave to fall off. The laws of England respecting personal rights were in general the laws of the Colonies, and they continued the same system after the Revolution by provisions in their Constitutions, adopting the common law subject to alterations by their own statutes. The literature of the Colonies was that of the mother country.
The aspect in which the case of fugitive slaves was presented to the authors of the Constitution therefore was this: A number of the States had very little interest in continuing the institution of slavery, and were likely soon to abolish it within their limits. When they should do so, the principle of the laws of England as to personal rights and the remedies for illegal imprisonment, would immediately prevail in such States. The judgment in Somerset's case and the principles announced by Lord MANSFIELD, were standing admonitions that even a temporary restraint of personal liberty by virtue of a title derived under the laws of slavery, could not be sustained where that institution did not exist by positive law, and where the remedy by habeas corpus, which was a cherished institution of this county as well as in England, was established. Reading the provision for the rendition of fugitive slaves, in the light which these considerations afford, it is impossible not to perceive that the Convention assumed the general principle to be that the escape of a slave from a State in which he was lawfully held to service into one which had abolished slavery would ipso facto transform him into a free man. This was recognized as the legal consequence of a slave going into a State where slavery did not exist, even though it were without the consent and against the will of the owner. A fortiori he would be free if the master voluntarily brought him into a free State for any purpose of his own. But the provision in the Constitution extended no further than the case of fugitives. As to such cases, the admitted general consequence of the presence of a slave in a free State was not to prevail, but he was by an express provision in the federal compact to be returned to the party to whom the service was due. Other cases were left to be governed by the general laws applicable to them. This was not unreasonable, as the owner was free to determine whether he would voluntarily permit his slave to go within a jurisdiction which did not allow him to be held in bondage. That was within his own power, but he could not always prevent his slaves from escaping out of the State in which their servile condition was recognized. The provision was precisely suited to the exigency of the case, and it went no further.
In examining other arrangements of the Constitution, apparently inserted for purposes having no reference to slavery, we ought to bear in mind that when passing the fugitive slave provision the Convention was contemplating the future existence of States which should have abolished slavery, in a political union with other States where the institution would still remain in force. It would naturally be supposed that if there were other cases in which the rights of slave owners ought to be protected in the States which should abolish slavery, they would be adjusted in connection with the provision looking specially to that case, instead of being left to be deduced by construction from clauses intended primarily for cases to which slavery had no necessary relation. It has been decided that the fugitive clause does not extend beyond the case of the actual escape of a slave from one State to another. ( Ex parte Simmons, 4 Wash. C.C.R., 396.) But the provision is plainly so limited by its own language.
The Constitution declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. ( Art. 4, § 2.) No provision in that instrument has so strongly tended to constitute the citizens of the United States one people as this. Its influence in that direction cannot be fully estimated without a consideration of what would have been the condition of the people if it or some similar provision had not been inserted. Prior to the adoption of the Articles of Confederation, the British colonies on this continent had no political connection, except that they were severally dependencies of the British crown. Their relation to each other was the same which they respectively bore to the other English colonies, whether on this continent or in Europe or Asia. When, in consequence of the Revolution, they severally became independent and sovereign States, the citizens of each State would have been under all the disabilities of alienage in every other, but for a provision in the compacts into which they entered whereby that consequence was avoided. The articles adopted during the Revolution formed essentially a league for mutual protection against external force; but in passing them it was felt to be necessary to secure a community of intercourse which would not necessarily obtain even among closely allied States. This was effected by the fourth article of that instrument, which declared that the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted) should be entitled to all privileges and immunities of free citizens in the several States, and that the people of each State should have free ingress and egress to and from any other State, and should enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof, respectively. The Constitution organized a still more intimate Union, constituting the States, for all external purposes and for certain enumerated domestic objects, a single nation; but still the principle of State sovereignty was retained as to all subjects, except such as were embraced in the delegations of power to the General Government or prohibited to the States. The social status of the people, and their personal and relative rights as respects each other, the definition and arrangements of property, were among the reserved powers of the States. The provision conferring rights of citizenship upon the citizens of every State in every other State, was inserted substantially as it stood in the Articles of Confederation. The question now to be considered is, how far the State jurisdiction over the subjects just mentioned is restricted by the provision we are considering; or, to come at once to the precise point in controversy, whether it obliges the State governments to recognize, in any way, within their own jurisdiction, the property in slaves which the citizens of States in which slavery prevails may lawfully claim within their own States — beyond the case of fugitive slaves. The language is that they shall have the privileges and immunities of citizens in the several States. In my opinion the meaning is, that in a given State, every citizen of every other State shall have the same privileges and immunities — that is, the same rights — which the citizens of that State possess. In the first place, they are not to be subjected to any of the disabilities of alienage. They can hold property by the same titles by which every other citizen may hold it, and by no other. Again, any discriminating legislation which should place them in a worse situation than a proper citizen of the particular State would be unlawful. But the clause has nothing to do with the distinctions founded on domicil. A citizen of Virginia, having his home in that State, and never having been within the State of New York, has the same rights under our laws which a native born citizen, domiciled elsewhere, would have, and no other rights. Either can be the proprietor of property here, but neither can claim any rights which under our laws belong only to residents of the State. But where the laws of the several States differ, a citizen of one State asserting rights in another, must claim them according to the laws of the last mentioned State, not according to those which obtain in his own.
The position that a citizen carries with him, into every State into which he may go, the legal institutions of the one in which he was born, cannot be supported. A very little reflection will show the fallacy of the idea. Our laws declare contracts depending upon games of chance or skill, lotteries, wagering policies of insurance, bargains for more than 7 per cent per annum of interest, and many others, void. In other States such contracts, or some of them, may be lawful. But no one would contend that if made within this State by a citizen of another State where they would have been lawful, they would be enforced in our courts. Certain of them, if made in another State and in conformity with the laws there, would be executed by our tribunals upon the principles of comity; and the case would be the same if they were made in Europe or in any other foreign country. The clause has nothing to do with the doctrine of international comity. That doctrine, as has been remarked, depends upon the usage of civilized nations and the presumed assent of the legislative authority of the particular State in which the right is claimed; and an express denial of the right by that authority is decisive against the claim. How then, is the case of the appellant aided by the provision under consideration?
The Legislature has declared, in effect, that no person shall bring a slave into this State, even in the course of a journey between two slaveholding States, and that if he does, the slave shall be free. Our own citizens are of course bound by this regulation. If the owner of these slaves is not in like manner bound it is because, in her quality of citizen of another State, she has rights superior to those of any citizen of New York, and because, in coming here, or sending her slaves here for a temporary purpose, she has brought with her, or sent with them, the laws of Virginia, and is entitled to have those laws enforced in the courts, notwithstanding the mandate of our own laws to the contrary. But the position of the appellant proves too much. The privileges and immunities secured to the citizens of each State by the Constitution are not limited by time, or by the purpose for which, in a particular case, they may be desired, but are permanent and absolute in their character. Hence, if the appellant can claim exemption from the operation of the statute on which the respondent relies, on the ground that she is a citizen of a State where slavery is allowed, and that our courts are obliged to respect the title which those laws confer, she may retain slaves here during her pleasure; and, as one of the chief attributes of property is the power to use it, and to sell or dispose of it, I do not see how she could be debarred of these rights within our jurisdiction as long as she may choose to exercise them. She could not, perhaps, sell them to a citizen of New York, who would at all events be bound by our laws, but any other citizen of a slave State — who would equally bring with him the immunities and privileges of his own State — might lawfully traffic in the slave property. But my opinion is that she has no more right to the protection of this property than one of the citizens of this State would have upon bringing them here under the same circumstances, and that the clause of the Constitution referred to has no application to the case. I concede that this clause gives to citizens of each State entire freedom of intercourse with every other State, and that any law which should attempt to deny them free ingress or egress would be void. But it is citizens only who possess these rights, and slaves certainly are not citizens. Even free negroes, as is well known, have been alleged not to possess that quality. In Moore v. The State of Illinois, already referred to, the Supreme Court of the United States, in its published opinion, declared that the States retained the power to forbid the introduction into their territory of paupers, criminals or fugitive slaves. The case was a conviction under a statute of Illinois, making it penal to harbor or secrete any negro, mulatto or person of color being a slave or servant owing service or labor to any other person. The indictment was for secreting a fugitive slave who had fled from his owner in Missouri. The owner had not intervened to reclaim him so as to bring the fugitive law into operation, and the case was placed by the court on the ground that it was within the legitimate power of State legislation, in the promotion of its policy, to exclude an unacceptable population. I do not at all doubt the right to exclude a slave as I do not consider him embraced under the provision securing a common citizenship; but it does not seem to me clear that one who is truly a citizen of another State can be thus excluded, though he may be a pauper or a criminal, unless he be a fugitive from justice. The fourth article of confederation contained an exception to the provision for a common citizenship, excluding from its benefits paupers and vagabonds as well as fugitives from justice; but this exception was omitted in the corresponding provision of the Constitution. If a slave attempting to come into a State of his own accord can be excluded on the ground mentioned, namely, because as a slave he is an unacceptable inhabitant, as it is very clear he may be, it would seem to follow that he might be expelled if accompanied by his master. It might, it is true, be less mischievous to permit the residence of such a person when under the restraint of his owner; but of this the Legislature must judge. But it is not the right of the slave but of the master which is supposed to be protected under the clause respecting citizenship. The answer to the claim in that aspect has been already given. It is that the owner cannot lawfully do anything which our laws do not permit to be done by one of our own citizens; and as a citizen of this State cannot bring a slave within its limits except under the condition that he shall immediately become free, the owner of these slaves could not do it without involving herself in the same consequences.
It remains to consider the effect upon this case of the provision by which power is given to Congress to regulate commerce among the several States. ( Art. 1, § 8, ¶ 3.) If the slaves had been passing through the navigable waters of this State in a vessel having a coasting license granted under the act of Congress regulating the coasting trade, in the course of a voyage between two slave States, and in that situation had been interrupted by the operation of the writ of habeas corpus, I am not prepared to say that they could have been discharged under the provision of the statute. So if in the course of such a voyage they had been landed on the territory of the State in consequence of a marine accident or by stress of weather. In either case they would, in strictness of language, have been introduced and brought into the State. In the latter case, their being here being involuntary, as regards the owner, they would not have been "brought here" within the meaning of the statute. ( Case of the brig Enterprize, in the decisions of the Commission of Claims, under the Convention of 1853, p. 187.) But the case does not present either of these features. Its actual circumstances are these: Mrs. Lemmon being the owner of these slaves, at her residence in Norfolk, chose to take them to the State of Texas for a purpose not disclosed, further than that it was not in order to sell them. Geographically, New York is not on the route of such a voyage, but we can readily see that it would be convenient to bring them to that city from which vessels sail to most of the ports in the Union, to be embarked from thence in a ship bound to a port in the extreme southern part of the Union. This was what was actually done. She came with the negroes to New York by sea, in order to embark from thence to Texas; and when the writ of habeas corpus was served they were staying at a house in the city, ready to set out when a vessel should sail, and not intending to remain longer than should be necessary.
The act under consideration is not in any just sense a regulation of commerce. It does not suggest to me the idea that it has any connection with that subject. It would have an extensive operation altogether independent of commerce. It is not therefore within the scope of the decision of the Supreme Court in the passenger cases. (7 How., 283.) In those cases the States of New York and Massachusetts had imposed taxes upon passengers arriving by sea at the ports of those States. The court considering the carrying of passengers coming here from foreign countries or being transported by sea between ports in different States, to be an operation of foreign and inter-state commerce, and holding moreover that the power to regulate commerce was exclusively vested in Congress, declared those acts to be a violation of the Constitution of the United States. It may be considered as settled by those judgments that an act of State legislation acting directly upon the subject of foreign or inter-state commerce, and being in substance a regulation of that subject, would be unwarranted, whether its provisions were hostile to any particular act of Congress or not. But there is a class of cases which may incidentally affect the subject of commerce, but in respect to which the States are free to act until the ground has been covered by an act of Congress. State legislation upon these subjects is not hostile to the power residing in Congress to regulate commerce; but if Congress in execution of that power shall have enacted special regulations touching the particular subject, such regulations then become exclusive of all interference on the part of the States. This is shown by the case of Wilson v. The Black Bird Creek Swamp Company (2 Pet., 250). The State of Delaware had authorized a corporation to erect a dam across a creek below tide-water, in order to drain a marsh. The validity of the act was drawn in question, on the ground that it was in conflict with the power of Congress to regulate commerce. The object of the work authorized by the State law was to improve the health of the neighborhood. In giving the opinion of the court, Chief Justice MARSHALL observed that "means to produce these objects (that is, health and the like), provided they do not come in collision with the powers of the General Government, are undoubtedly within those which are reserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance." "If Congress had passed any act which bore upon the case — any act in execution of the powers to regulate commerce, the object of which was to control State legislation over these small navigable creeks into which the tide flows — we should feel not much difficulty in saying that a State law being in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware with the Constitution is placed entirely on its repugnancy with the power to regulate commerce with foreign nations and among the several States — a power which has not been exercised so as to affect the question." The same principle has been affirmed in Sturges v. Crowinshield (4 Wheat., 193), and in Moore v. Houston (5 Wheat., 1); and since the Passenger cases, it has been reiterated in the Pilot case ( Cooley v. The Board of Wardens of Philadelphia, 12 How., 299). The application of the rule to the present case is plain. We will concede, for the purpose of the argument, that the transportation of slaves from one slaveholding State to another is an act of inter-state commerce, which may be legally protected and regulated by federal legislation. Acts have been passed to regulate the coasting trade, so that if these slaves had been in transitu between Virginia and Texas, in a coasting vessel, at the time the habeas corpus was served, they could not have been interfered with while passing through the navigable waters of a free State by the authority of a law of such State. But they were not thus in transit at that time. Congress has not passed any act to regulate commerce between the States when carried on by land, or otherwise than in coasting vessels. But conceding that, in order to facilitate commerce among the States, Congress has power to provide for precisely such a case as the present — the case of persons, whose transportation is the subject of commercial intercourse, being carried by a coasting vessel to a convenient port in another State, with a view of being there landed, for the purpose of being again embarked on a fresh coasting voyage to a third port, which was to be their final destination — the unexercised power to enact such a law, to regulate such a transit, would not affect the power of the States to deal with the status of all persons within their territory in the meantime, and before the existence of such a law. It would be a law to regulate commerce carried on partly by land and partly by water — a subject upon which Congress has not thought proper to act at all. Should it do so hereafter, it might limit and curtail the authority of the States to execute such an act as the present in a case in which it should interfere with such paramount legislation of Congress. I repeat the remark, that the law of the State under consideration has no aspect which refers directly to commerce among the States. It would have a large and important operation upon cases falling within its provisions, and having no connection with any commercial enterprise. It is then, so far as the commercial clause is concerned, generally valid; but in the case of supposable federal legislation, under the power conferred upon Congress to regulate commerce, circumstances might arise where its execution, by freeing a slave cargo landed on our shores, in the course of an inter-state voyage, would interfere with the provisions of an act of Congress. The present state of federal legislation however, does not, in my opinion, raise any conflict between it and the laws of this State under consideration. Upon the whole case, I have come to the conclusion that there is nothing in the National Constitution or the laws of Congress to preclude the State judicial authorities from declaring these slaves thus introduced into the territory of this State, free, and setting them at liberty, according to the direction of the statute referred to. For the foregoing reasons, I am in favor of affirming the judgment of the Supreme Court.
No person can be restrained of his liberty within this State, unless legal cause be shown for such restraint. The habeas corpus act operates to remove the subject from private force into the public forum: and enlargement of liberty, unless some cause in law be shown to the contrary, flows from the writ by a legal necessity. ( Const., art. 1, § 4; 2 R.S., 563, § 21; id., 565, § 39.) The restraint cannot be continued for any moment of time, unless the authority to maintain it have the force of law within the State.
In November, 1852, a writ of habeas corpus on behalf of eight colored persons, was issued by a Justice of the Superior Court in the city of New York, to inquire into the cause of their detention. The appellant showed for cause that they were slaves of his wife in Virginia, of which State before that time he and his wife had been citizens and there domiciled, and that she held them as such in New York, in transit from Virginia through New York to Texas, where they intended to establish a new domicil. The return to the writ stated substantially that the route and mode of travel was by steamer from Norfolk, in Virginia, to the port of New York, and thence by a new voyage to Texas. In execution of this plan of travel, they and their slaves had reached the city of New York, and were awaiting the opportunity of a voyage to Texas, with no intention on their part that they or the eight colored persons should remain in New York for any other time, or for any other purpose, than until opportunity should present to take passage for all to Texas. The whole question, therefore, on these facts is, whether the cause shown was a legal one. If the relation of slave owner and slave which subsisted in Virginia between Mrs. Lemmon and these colored persons while there, by force of law attend upon them while commorant within this State in the course of travel from Virginia to Texas, and New York, though a sovereign State, be compelled to sanction and maintain the condition of slavery for any purpose, and cannot effect a universal proscription and prohibition of it within her territorial limits, then is legal cause of restraint shown: otherwise not.
The question is one affecting the State in her sovereignty. As a sovereign State she may determine and regulate the status or social and civil condition of her citizens, and every description of persons within her territory. This power she possesses exclusively; and when she has declared or expressed her will in this respect, no authority or power from without can rightly interfere, except in the single instance of a slave escaping from a State of the Union into her territory; and in this, only because she has, by compact, yielded her right of sovereignty. ( U.S. Const., art. 4, § 2.) She has the undoubted right to forbid the status of slavery to exist in any form, or for any time, or for any purpose, within her borders, and declare that a slave brought into her territory from a foreign State, under any pretence whatever, shall be free. If she has done this, then neither an African negro nor any other person, white or black, can be held within her limits, for any moment of time, in a condition of bondage. It cannot affect the question, that at some time in her history as a colony or State she has tolerated slavery on her soil, or that the status has ever had a legal cognition: for without regard to time or circumstances, the State may, at her will, change the civil condition of her inhabitants and her domestic policy, and proscribe and prohibit that which before had existed. I do not say that she may convert any description of her free inhabitants or citizens into slaves; for slavery is repugnant to natural justice and right, has no support in any principle of international law, and is antagonistic to the genius and spirit of republican government. Besides, liberty is the natural condition of men, and is world-wide: whilst slavery is local, and beginning in physical force, can only be supported and sustained by positive law. "Slavery," says Montesquieu, "not only violates the laws of nature and of civil society; it also wounds the best forms of government; in a democracy where all men are equal slavery is contrary to the spirit of the Constitution."
It is not denied that New York has effectually exerted her sovereignty to the extent that the relation of slave owner and slave cannot be maintained by her citizens, or persons or citizens of any other State or nation domiciled within her territory, or who make any stay beyond the reasonable halt of wayfarers, and that this she might rightfully do. I will not stop here to inquire whether this is not virtually conceding the whole question in the case. It is urged that this is as far as the State had gone when the present case arose; and if I comprehend the argument rightly, as far as she can ever go without transcending restraints imposed upon her sovereignty by the Constitution of the United States, or violating the principles of the law of nations as governing the intercourse of friendly States. I shall show that neither of these propositions are maintainable, and that in the legislation of the State on the subject of slavery, the case of the status during transit has not escaped its intent and effect; but that if it were otherwise, when the domestic laws reject and suppress the status as a civil condition or social relation, as matter of reason and authority it is never upheld in the case of strangers resident or in transit.
1st. How far has the State gone in the expression of her sovereign will, that slavery, by whatsoever casual access, or for whatsoever transient stay, shall not be tolerated upon her soil? When negro slavery was first introduced and established as an institution in the Colony of New York, is not easily traceable. It never had any foundation in the law of nature, and was not recognized by the common law. ( Somerset's case, Lofft's R., 1; S.C., 20; Howell's State Trials, 2.) Yet it existed in the Colony by force of local law, and was continued by the same sanction in a mild form in the eastern part of the State, after New York became an independent sovereignty. The public sentiment, reason and conscience, however, continued to frown on it until, in 1817, steps were taken by the legislative department of the government to effect its total abolition before 1830. As indicative of the public sentiment, in 1820 the Legislature, with unanimity, adopted a resolution requesting our Representatives in Congress to oppose the admission of any State into the Union, without making the prohibition of slavery therein an indispensable condition of admission; and in the preamble to the resolution, recited that they considered slavery to be an evil much to be deplored. The statute of 1817, provided against importing, introducing, or bringing into the State, on any presence whatever, except in certain cases therein specified, persons held as slaves under the laws of other States. Amongst these cases, was that of a person, not being an inhabitant of our State, who should be traveling to or from, or passing through the State. He might bring with him any person held by him in slavery under the laws of the State from which he came, and might take such person with him from the State of New York; but the person held in slavery should not reside or continue in our State more than nine months, and if such residence were continued beyond that time, such person should be free. These provisions against introducing or bringing foreign slaves into the State, except in the case of an inhabitant of another State, temporarily sojourning in or passing through this State, were re-enacted in the revision of the Statutes in 1830, with this additional section: "Every person born within this State, whether white or colored, is free; every person who shall hereafter be born within this State shall be free, and every person brought into this State as a slave, except as authorized by this title, shall be free." (1 R.S., 656, 657, § 6; id., 659, § 16.) Here was an authoritative and emphatic declaration of the sovereign will, that freedom should be the only condition of all descriptions of persons, resident or domiciled within the State, and that no slave should be brought therein, under any pretence whatever, except by his master, an inhabitant of another State, who was traveling to or from, or passing through this State. Thus slavery was left without the support of even the municipal law, except in the instance of sojourners, and then only for a period of nine months, and slave owners of other States passing with their slaves through our own. But in 1841, the sanction of the municipal law even in these cases was taken away. The Legislature, in 1841, repealed all the sections of the Revised Statutes allowing slaves to be brought voluntarily into the State, under any circumstances, leaving the provisions still in operation, that no person held as a slave should be imported, introduced or brought into the State on any pretence whatever; and if brought in, should be free. ( Laws of 1841, ch. 247.) That this legislation was intended to reach the case of the transitus of a slave in custody of an inhabitant of a slaveholding State claiming to be his owner, and to leave no legal basis for the status of slavery in any form or for any purpose to rest upon, within the limits of the State, is evident. By the law of 1830, the privilege was secured to the foreign slaveholder of temporarily sojourning in or passing through the State with his slaves. In 1841 this privilege is taken away by the affirmative action of the law-making power. So, also, by the law of 1830, any person who, or whose family, resided part of the year in this State, and part of the year in any other State, might remove or bring with him or them, from time to time, any person lawfully held by him in slavery, into this State, and might carry such person with him or them out of it. This was denied by the Legislature in 1841. The obvious intent and effect of the repealing act of 1841 was to declare every person upon the soil of this State, even though he may have been held as a slave by the laws of another State, to be free, except in the single instance of a person held in slavery in any State of the United States under the laws thereof, who should escape into this State. With the courtesy of this legislation, so far as it might operate to affect friendly intercourse with citizens of slaveholding States, as a judicial tribunal, we have nothing to do. We are only to determine the intent and effect of the legislation. It is but just, however, to the political power of the State, to remark, that it was not conceived in any spirit of irrational propagandism or partizanship, but to effectuate a policy based upon principle, and in accordance with public sentiment. The fact that it has been the law of the State for nearly twenty years, and through successive changes of the political power, is cogent proof that it rests upon the foundation of a public sentiment not limited in extent to any party or faction. The effect of the legislation was to render the civil condition of slavery impossible in our own society. Liberty and slavery, as civil conditions, mean no more than the establishment of law, and the means to enforce or protect the one or the other. As the status of slavery is sustained and supported exclusively by positive law (and this has been so held as to the status in Virginia by her courts), if we have no law to uphold it, but on the contrary, proscribe and prohibit it, it cannot exist for an instant of time within our jurisdiction. (4 Munford's R., 209; 2 Hen. Munford, 149.) Of course I mean with this qualification, that there is no duty or obligation in respect thereto, imposed on the sovereignty of the State by the Federal Constitution, or the rules of international law.
2d. Is there anything in the Federal Constitution to hinder the State from pursuing her own policy in regulating the social and civil condition of every description of persons that are or may come within her jurisdictional limits, or that enjoins on her the duty of maintaining the status of slavery in the case of slaves from another State of the Union voluntarily brought into her territory? It ought not to be necessary at this day to affirm the doctrine, that the Federal Constitution has no concern, nor was it designed to have, with the social basis and relations and civil conditions which obtain within the several States. The Federal Constitution is but the compact of the people of separate and independent sovereignties, yielding none of the rights pertaining to those sovereignties within their respective territorial limits, except in a few special cases. This was the nature of the compact as explained by its framers and contemporaneous expounders, and since by the Federal Courts, although it has become common of late to strive to find something in this bond of Federal Union to sustain and uphold a particular social relation and condition outside of the range of the laws which give it vitality. ( Ex parte Simmons, 4 Wash. C.C.R., 396; Groves v. Slaughter, 15 Pet., 508; Prigg v. Commonwealth of Penn., 16 Pet., 611, 625; Strader v. Graham 10 How. R., 82, 93.) Although the status of African slavery had at some time been recognized in all of the original States, at the period of the formation of the Federal Constitution some of them had abolished the institution, and others were on the eve of abolishing it; whilst others were maintaining it with increasing vigor. There are but three sections in the whole instrument that allude to the existence of slavery under the laws of any of the States, and then not in terms but as explained by the light of contemporaneous history, and in such a way as to stamp the institution as local. These are the provisions apportioning federal representation and direct taxation ( U.S. Const., art. 1, § 2, subd. 3) in relation to "persons held to labor in one State, under the laws thereof, escaping into another" ( Const., art. 4, § 2) and restraining Congress, prior to 1808, from prohibiting "the migration or importation of such persons as any of the States now existing shall think proper to admit." ( Const., art. 1, § 9.) The latter provision, it is known, was urged with much earnestness by the delegates from two or three of the Southern States, with the view to restrain Congress from prohibiting the foreign slave trade before 1808. In Groves v. Slaughter (15 Pet., 506), Judge McLEAN thought the provision recognized the power to be in the States to admit or prohibit, at the discretion of each State, the introduction of slaves into her territory. He says: "The importation of certain persons, meaning slaves, which was not to be prohibited before 1808, was limited to such States then existing as shall think proper to admit them. Some of the States at that time prohibited the admission of slaves, and their right to do so was as strongly implied by this provision as the right of other States that admitted them." But the provision has long ceased to have any practical operation. Congress has prohibited the importation of slaves into any of the States of the Union, and the slave trade is declared to be piracy. The provision has no importance now, except it be to show, that in the view of the framers of the Constitution, slavery was local in its character; that the power over it belonged to the States respectively, and that it was not to be recognized or receive any aid from the federal authority; but on the contrary, by all the means it possessed, federal power, after 1808, was to be exerted to suppress it. The provision in respect to apportioning representation in Congress, alludes remotely and only impliedly to the fact that slavery existed in any of the States. The representative population was to be "determined by adding to the whole number of free persons including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." No duty or obligation was imposed on the States; nor is there the remotest sanction or recognition of slaves as property outside of the range of the territorial laws which treat them as such. The third provision is simply a consent of the State as parties to the federal compact to the reclamation of fugitives from service. In speaking of this clause, Judge STORY said, in delivering the opinion of the Supreme Court of the United States in Prigg v. Commonwealth of Pennsylvania: "By the general laws of nations, no nation is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity and not as a matter of international right. The state of slavery is deemed to be a municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's case, which was decided before the American Revolution. It is manifest, from this consideration, that if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters; a course which would have created the most bitter animosities, and engendered perpetual strife between the different States. * * The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it; a proof at once of its intrinsic and practical necessity." The learned judge was right in saying that the clause, as it stands in the instrument, was adopted with entire unanimity; but it was not adopted as originally reported. There were many eminent and patriotic men in and out of the Convention, both north and south, that did not contemplate that slavery was to be perpetual in any of the States of the Union, and amongst these was the illustrious presiding officer of the Convention, from Virginia. It was certainly inconsistent with the principle that lies at the foundation of our government. In incorporating the fugitive slave provision in the Constitution, the Convention was careful not to do anything which should imply its sanction of slavery as legal. The provision, as originally reported, read, "legally held to service," and it was amended by striking out the word "legally" and made to read "held to service or labor in one State, under the laws thereof." ( See Journal, 384; Madison's Works, 1558, 1589.)
So, also, the word "service" was substituted for "servitude," on motion of a delegate from Virginia; the latter being descriptive of slaves. (3 Madison's Works, 1569.) The term "slave" is not used in the Constitution, and if the phrase, "a person held to service or labor in one State under the laws thereof," is to be construed as meaning slaves, then the Federal Constitution treats slaves as persons and not as property, and it acts upon them as persons and not as property, though the latter character may be given to them by the laws of the States in which slavery is tolerated. It is entirely clear that the Convention was averse to giving any sanction to the law of slavery, by an express or implied acknowledgment that human beings could be made the subject of property; and it is moreover manifest from all the provisions of the Constitution, and from contemporaneous history, that the ultimate extinction of slavery in the United States, by the legislation and action of the State governments (instead of adopting or devising any means or legal machinery for perpetuating it), was contemplated by many of the eminent statesmen and patriots who framed the Federal Constitution, and their contemporaries both north and south. The provision in relation to fugitives from service, is the only one in the Constitution that, by an intendment, supports the right of a slave owner in his own State, or in any other State. This, by its terms, is limited to its special case, and necessarily excludes federal intervention in every other. This has been always so regarded by the federal courts and the cases uniformly recognize the doctrine, that both the Constitution and laws of the United States apply only to fugitives escaping from one State and fleeing to another; that beyond this the power over the subject of slavery is exclusively with the several States, and that their action cannot be controlled by the Federal Government. Indeed, the exclusive right of the State of Missouri to determine and regulate the status of persons within her territory, was the only point in judgment in the Dred Scott case, and all beyond this was obiter. ( Ex parte Simmons, 4 Wash. C.C.R., 396; Groves v. Slaughter, 15 Pet., 508; Strader v. Graham, 10 Howard, 92.) Any other doctrine might prove more disastrous to the status of slavery than to that of liberty in the States, for, from the moment that it is conceded that, by the exercise of any powers granted in the Constitution to the Federal Government, it may rightly interfere in the regulation of the social and civil condition of any description of persons within the territorial limits of the respective States of the Union, it is not difficult to foresee the ultimate result.
The provision of the Federal Constitution conferring on Congress the power to regulate commerce among the several States, is now invoked as a restraint upon State action. It is difficult to perceive how this provision can have any application to the case under consideration. It is not pretended that the persons claimed to be held as slaves were in transit to Texas as articles of commerce; nor that, being with their alleged owner, on board a coasting vessel, enrolled and licensed under the laws of Congress, such vessel was driven, by stress of weather or otherwise, into the navigable waters of this State. Indeed, the case showed that their owner had voluntarily brought them into the State; that taking passage from Norfolk to New York, his and their voyage in the coasting steamer had terminated, and he was sojourning in the city with them, awaiting the opportunity to start on a new voyage to Texas. It is certainly not the case of the owner of slaves, passing from one slave State to another, being compelled, by accident or distress, to touch or land in this State. In such case, probably, our law would not act upon the status of the slave, not being within its spirit and intention; but as Congress has not yet undertaken to regulate the internal slave trade, even if it has authority to do so, in no just sense could even such a case be said to raise the question of the right of federal intervention. But in no view can the provision empowering Congress to regulate commerce among the States affect the power of the respective States over the subject of slavery. Even those who have contended for the right in Congress, under the commercial power, as it is called, to regulate the traffic in slaves, among the several States, admit that it is competent for a State, with the view of effectuating its system of policy in the abolition of slavery, to entirely prohibit the importation of slaves, for any purpose, into her territory. But apart from effectuating any object of police or promoting any rule of policy, the power over the whole subject is with the States respectively; and this was so declared by the Supreme Federal Court, in Groves v. Slaughter (15 Pet., 508), a case in which it was attempted to be urged that a provision in the Constitution of Mississippi, prohibiting the importation of slaves into that State for sale, was in conflict with the commercial power of the Federal Government. As was said by Chief Justice TANEY, in that case, "each of the States has a right to determine for itself whether it will or will not allow persons of this description (slaves) to be brought within its limits from another State, either for sale or for any other purpose, and also to prescribe the manner and mode in which they may be introduced, and to determine their condition and treatment within their respective territories; and the action of the several States upon this subject cannot be controlled by Congress, either by virtue of its power to regulate commerce, or by virtue of any other power conferred by the Constitution of the United States." The case of Groves v. Slaughter was deemed at the time to have settled the question against the right in Congress, under the commercial claim, to regulate the internal slave trade, or to interfere in any way with the power of the States to severally protect themselves, under any and all circumstances, against an external evil.
The constitutional provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States" ( U.S. Const., art. 4, § 2, subd. 1), is also invoked as having some bearing on the question of the appellant's right. I think this is the first occasion in the juridical history of the country that an attempt has been made to torture this provision into a guaranty of the right of a slave owner to bring his slaves into, and hold them for any purpose in, a non-slaveholding State. The provision was always understood as having but one design and meaning, viz., to secure to the citizens of every State, within every other, the privileges and immunities (whatever they might be) accorded in each to its own citizens. It was intended to guard against a State discriminating in favor of its own citizens. A citizen of Virginia coming into New York was to be entitled to all the privileges and immunities accorded to the citizens of New York. He was not to be received or treated as an alien or enemy in the particular sovereignty.
Prior to the adoption of the Federal Constitution, and even under the Confederation, the only kind of citizenship was that which prevailed in the respective States. The Articles of Confederation provided "that the free inhabitants of each of the States (paupers, vagabonds and fugitives from justice excepted), should be entitled to all privileges and immunities of free citizens in the several States; and the people of each State should have free ingress and egress to and from any other State, and should enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof, respectively." ( Art. 4.) This article limited the right to the free inhabitants of the States, implying that there were inhabitants of the States in the Confederacy that were not free, and to whom the privileges and immunities were not extended. But when the framers of the Constitution came to re-model this clause, having conferred exclusive power upon the Federal Government to regulate commercial intercourse, and imposed the obligation upon the States, respectively, to deliver up fugitives escaping from service, and being unwilling, even impliedly, to sanction, by federal authority, the legality of the state of slavery, they omitted the provisions of the article in relation to commercial intercourse, and substituted for the words, "the free inhabitants of each State," the words, "the citizens of each State," and made the provision to read as it now stands in the Constitution. If the provision can be construed to confer upon a citizen of Virginia the privilege of holding slaves in New York, when there is no law to uphold the status, and the privilege is denied to our own citizens, then Judge STORY and the Federal Court fell into a grave error in the opinion, that if it were not for the fugitive slave provision, New York would have been at liberty to have declared free all slaves coming within her limits, and have given them entire immunity and protection; and so, also, did Chief Justice TANEY mistake the character of the instrument, when declaring that there was nothing in the Constitution to control the action of a State in relation to slavery within her limits. But it seems a work of supererogation to pursue this inquiry. It never yet has been doubted that the sovereign powers vested in the State governments remain intact and unimpaired, except so far as they are granted to the government of the United States; and that the latter government can claim no powers which are not granted to it by the Constitution, either expressly or by necessary implication. There is no grant of power to the Federal Government, and no provision of the Constitution from which any can be implied, over the subject of slavery in the States, except in the single case of a fugitive from service. The general power is with the States, except as it has been specially limited by the Federal Constitution; and this special limitation has been rightly considered as a forcible implication in proof of the existence of the general power in the States. So it was considered in Lunsford v. Coquillon (14 Martin's R., 403), a case arising in a slave holding State, in which the authority of States was fully recognized to make laws dissolving the relation of master and slave. Such a construction of the Constitution and law of the United States, say that court, can work injury to no one, for the principle acts only on the willing, and volenti non fit injuria.
3d. Is the State, upon principles of comity, or any rule of public law, having force within the State, required to recognize and support the relation of master and slave, between strangers sojourning in or passing through her territory? The relation exists, if at all, under the laws of Virginia, and it is not claimed that there is any paramount obligation resting on this State to recognize and administer the laws of Virginia within her territory, if they be contrary or repugnant to her policy or prejudicial to her interests. She may voluntarily concede that the foreign law shall operate within her jurisdiction, and to the extent of such concession, it becomes a part of her municipal law. Comity, however, never can be exercised in violation of our own laws; and in deciding whether comity requires any act, we look to our own laws for authority. There can be no application of the principles of comity, when the State absolutely refuses to recognize or give effect to the foreign law, or the relation it establishes, as being inconsistent with her own laws, and contrary to her policy. The policy and will of the State in respect to the toleration of slavery, in any form, or however transient the stay, within her territory, has been distinctly and unmistakably expressed. Before the repealing act of 1841, our statutes operated to absolutely dissolve the relation of master and slave, and make the latter a freeman, except in the case of a master and slave, inhabitants of another State, temporarily in or passing through the State. In the latter cases, though the master could obtain no affirmative aid from the municipal law to enforce restraint of the liberty of the slave, yet the State, exercising comity, expressly permitted the relation to exist for the space of nine months. To this extent the State consented that the foreign law of slavery should have effect within her limits, and the relation of master and slave was not to be dissolved by force of the municipal law, unless the stay was continued beyond nine months. There can be no doubt that without this express exception, the statute of 1830 would have acted directly upon the status of any slave brought voluntarily into the State, and made him a freeman. As a matter of comity, however, the will of the State then was, that in the case of an inhabitant of another State passing through our territory with his slaves, the status of the latter should not be affected by our laws. But, in 1841, the State, by actual legislation, abrogated the permission accorded to slavery during transit, and declared it to be her will, that, under all circumstances, a slave voluntarily brought into the State should be free, and that the status should not be tolerated within her borders. It is for the State to establish the rule, and exercise comity, and not the courts in her behalf, and she may or may not, as she chooses, exercise it. The courts have but the power of determining whether the comity inquired of be indicated by her policy and actual legislation. The State has declared, through her Legislature, that the status of African slavery shall not exist, and her laws transform the slave into a freeman the instant he is brought voluntarily upon her soil. Her will is that neither upon principles of comity to strangers passing through her territory, nor in any other way, shall the relation of slave owner and slave be upheld or supported. Instead, therefore, of recognizing or extending any law of comity towards a slaveholder passing through her territory with his slaves, she refuses to recognize or extend such comity, or allow the law of the sovereignty which sustains the relation of master and slave to be administered as a part of the law of the State. She says, in effect, to the foreign slave owner, if you bring your slaves within the State, on any pretence whatever, neither by comity nor in any other way shall the municipal law let in and give place to the foreign law; but the relation established and sustained only by the foreign municipal law shall terminate, and the persons before held as slaves shall stand upon her soil in their natural relations as men and as freemen. It is conceded that she may go to this extent if there be no restraint on her action by the Federal Constitution; and to this extent, I think, her policy and actual legislation clearly indicate that she has gone. But if there were no actual legislation reaching the case of slavery in transit, the policy of the State would forbid the sanction of law, and the aid of public force, to the proscribed status in the case of strangers within our territory. It is the status, the unjust and unnatural relation, which the policy of the State aims to suppress, and her policy fails, at least in part, if the status be upheld at all. Upon the same rule that she would permit the Virginia lady in this case to pass through her territory with slaves, she would be constrained to allow the slave trader, with his gang, to pass, even at the risk of public disorder which would inevitably attend such a transit. The State deems that the public peace, her internal safety and domestic interests, require the total suppression of a social condition that violates the law of nature ( Virginia Bill of Rights, §§ 1, 15); a status, declared by Lord MANSFIELD, in Sommerset's case, to be "of such a nature that it is incapable of being introduced on any reasons, moral or political;" that originates in the predominance of physical force, and is continued by the mere predominance of social force, the subject knowing or obedient to no law but the will of the master, and all of whose issue is involved in the misfortune of the parent; a status which the law of nations treats as resting on force against right, and finding no support outside of the municipal law which establishes it. ( Taylor's Elements of Civil Law, 429; Sommerset's case, 20 Howell's State Trials, 2; 2 Devereaux's R., 263.) Why should not the State be able to utterly suppress it within her jurisdiction? She is not required by the rule of the law of nations, which permits the transit of strangers and their property through a friendly State, to uphold it. Men are not the subject of property by such law, nor by any law, except that of the State in which the status exists; not even by the Federal Constitution, which is supposed by some to have been made only to guard and protect the rights of a particular race; for in that human beings, without regard to color or country, are treated as persons and not as property. The public law exacts no obligation from this State to enforce the municipal law which makes men the subject of property; but by that law the strangers stand upon our soil in their natural condition as men. Nor can it be justly pretended that by the principle which attributes to the law of the domicil the power to fix the civil status of persons, any obligation rests on the State to recognize and uphold within her territory the relation of slave owner and slave between strangers. So far as it may be done without prejudice to her domestic interests, she may be required to recognize the consequences of the status existing abroad in reference to subjects within her own jurisdiction; and when it is brought within her limits, and is there permissible as a domestic regulation, to recognize the foreign law as an authentic origin and support of the actual status. ( Story's Confl. of Laws, §§ 51, 89, 96, 113, 114, 104, 620, 624.) But no further than they are consistent with her own laws, and not repugnant or prejudicial to her domestic policy and interests, is the State required to give effect to these laws of the domicil.
My conclusions are, that legal cause was not shown for restraining the colored persons, in whose behalf the writ of habeas corpus was issued, of their liberty; and that they were rightly discharged. I have aimed to examine the question involved in a legal, and not in a political aspect; the only view, in my judgment, becoming a judicial tribunal to take. Our laws declare these persons to be free; and there is nothing which can claim the authority of law within this State, by which they may be held as slaves. Neither the law of nature or nations, nor the Federal Constitution, impose any duty or obligation on the State to maintain the state of slavery within her territory, in any form or under any circumstances, or to recognize and give effect to the law of Virginia, by which alone the relation exists, nor does it find any support or recognition in the common law.
The judgment of the Supreme Court should be affirmed.
DAVIES, BACON and WELLES, Js., concurred.
I have been prevented, by want of time and the pressure of other duties, from giving to this case that careful examination which is due to its importance, and to the elaborate and able arguments of the counsel, and am not prepared, therefore, definitely to determine whether the act of 1841 is or is not in conflict with any express provisions of the United States Constitution. But however this may be, I cannot but regard it as a gross violation of those principles of justice and comity which should at all times pervade our inter-state legislation, as well as wholly inconsistent with the general spirit of our national compact. While, therefore, I am not prepared at this time to give such reasons as would justify me in holding the law to be void, I am equally unprepared to concur in the conclusion to which the majority of my associates have arrived.
A considerable proportion of the discussion in this case was occupied by observations, not at all necessary to a proper disposition of it; nor were they calculated, in the slightest degree, in my opinion, to aid the court in solving the questions presented for its determination. Whether slavery is agreeable or in opposition to the law of nature; whether it is morally right or wrong; whether it is expedient or inexpedient; whether the African race are adapted, by their physical and moral organization, only to this condition; whether they can be induced to labor only by compulsion; whether the fairest and most fertile portions of the earth — those lying near and within the tropical zones — can alone be cultivated to any extent by that race, and whether, if without their labor, therefore, this large portion of the globe will, contrary to the manifest design of the Creator, continue or become a sterile waste, are questions very interesting within the domain of theology, or ethics, or political economy, but totally inappropriate to the discussion of the purely legal questions now presented for our consideration. Those questions are, 1st, whether the Legislature of this State has declared that all slaves brought by their masters into this State, under any circumstances whatever, even for a moment, shall be free; and 2d, if it has so declared, had it the constitutional power to do so.
1. The act passed in 1817, and re-enacted in 1830, declares that no person held as a slave shall be imported, introduced, or brought into this State, on any pretence whatsoever, except in the cases therein specified, and that every such person shall be free. One of the excepted cases allows a person, not an inhabitant of this State, traveling to or from, or passing through this State, to bring his slave here and take him away again; but if the slave continues here more than nine months, he shall be free. These exceptions were repealed by an act passed May 25, 1841, amending the Revised Statutes in relation to persons held in slavery. Although there appears to be no ambiguity in the language of those acts, I am not surprised that some incredulity has been expressed in relation to their entire meaning. What, it may be plausibly asked, could be the object of the Legislature in interfering with persons passing through our territory? It is not to be supposed a priori, that any one member of the brotherhood of States would adopt any legislation for the purpose of affecting persons with whom, as a social or political community, it has no possible concern. If the slave were to remain here for any time, legislators may, indeed, fear some detriment, some demoralization from his presence; but what could the most nervous or fastidious guardians of the public interests apprehend from persons passing through the State. Neither could it add one jot or tittle to the sum of slavery in the world. To suppose, therefore, it may be said, that the acts referred to aimed at such persons, would be imputing a spirit of the most wanton aggression to the legislators who passed them. It would be mere propagandism, of which we should not suppose any community capable, who were not in a condition of revolutionary excitement, and fanatical exaltation, like that of the French people during their first revolution, when they undertook to force their theories of spurious democracy on the other nations of Europe, disturbing its peace for more than twenty years, and causing wide-spread slaughter and desolation. But, notwithstanding all these reasons, which may be plausibly suggested in considering the intent of the Legislature, the language of the acts referred to is too plain to admit of any doubt of that intent. It evidently intended to declare that all slaves voluntarily brought into this State, under any circumstances whatever, should become instantly free.
2. But it is a question of much greater difficulty, whether the Legislature had the constitutional power to do so.
New York is a member of a confederacy of free and sovereign States, united for certain specific and limited purposes, under a solemn written covenant. And this covenant not only establishes a confederacy of States, but also, in regard to its most material functions, it gives this confederacy the character of a homogeneous national government. The Constitution is not alone federal or alone national; but, by the almost divine wisdom which presided over its formation, while its framers desired to preserve the independence and sovereignty of each State within the sphere of ordinary domestic legislation, yet they evidently designed to incorporate this people into one nation, not only in its character as a member of the great family of nations, but also in the internal, moral, social and political effect of the Union upon the people themselves. It was essential to this grand design that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different States, as between the inhabitants and citizens of the same State. The people of the United States, therefore, "in order to form a more perfect union" than had existed under the old Confederacy, declare and provide, among other things in the Constitution under which we have now the privilege of living, that Congress (alone) shall have power to regulate commerce among the several States; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; to coin money as the genuine national circulating medium; to regulate its value; to fix the standard of weights and measures; to establish post-offices and post-roads; to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. It also provides that no tax or duties shall be laid on articles exported from any State, and that no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over another; that vessels bound to or from one State, shall not be obliged to enter, clear or pay duties in another; that full faith or credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. The people, in adopting this Constitution, declare in its very preamble that they intended to form a more perfect union than had bound them under the old Articles of Confederation, the fourth article of which declared that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States, the free inhabitants of each State should be entitled to all the privileges and immunities of free citizens in the several States: that the people of each State should have free ingress to and from any other State, and should enjoy therein all the privileges of trade and commerce, as the inhabitants thereof respectively, subject to the same duties, impositions and restrictions; provided that those restrictions shall not extend so far as to prevent the removal of property, imported into any State, to any other State of which the owner is an inhabitant. Most assuredly, the people who adopted the present Constitution did not intend that the intercourse between the people of the different States should be more limited or restricted than the States, in their corporate capacity, provided in the Articles of Confederation. On the contrary, they contemplated, as we have seen, a more perfect union, and a more perfect and unrestricted intercourse; and they amply secured it by the provisions to which I have referred.
Is it consistent with this purpose of perfect union, and perfect and unrestricted intercourse, that property which the citizen of one State brings into another State, for the purpose of passing through it to a State where he intends to take up his residence, shall be confiscated in the State through which he is passing, or shall be declared to be no property, and liberated from his control? If he, indeed, brings his property voluntarily, with the design of taking up his residence in another State, or sojourning there for any purpose of business, even for a brief period, he subjects himself to the legislation of that State, with regard to his personal rights and the rights relating to property.
By the law of nations, the citizens of one government have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property. This privilege is yielded between foreign nations towards each other without any express compact. It is a principle of the unwritten law of nations.
Of course this principle is much more imperative on the several States than between foreign nations in their relations towards each other. For it can be clearly deduced, as we have seen, from the compact on which their union is based. Therefore, making this principle of the law of nations applicable to the compact which exists between the several States, we say, that the citizens of any one State have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property. But the judge who decided this case in the first instance (by whose reasoning, I may be permitted here to say, I was erroneously influenced in voting at the general term of the Supreme Court in the first district), while admitting the principle of the law of nations, which I have quoted, says that the property, which the writers on the law of nations speak of, is merchandise or inanimate things, and that the principle, therefore, is not applicable to the slaves, who, by the law of nature and of nations, he contends, cannot be property. Foreign nations, undoubtedly, between whom no express compact exists, are at liberty to make this exception. But can any of the States of this confederacy, under the compact which unites them, do the same? Can they make this distinction? In other words, can any one State insist, under the federal compact, in reference to the rights of the citizens of any other State, that there is no such thing as the right of such citizens, in their own States, to the service and labor of any person. This is property; and whether the person is held to service and labor for a limited period, or for life, it matters not; it is still property — recognized as an existing institution by the people who framed the present Constitution, and binding upon their posterity forever, unless that Constitution should be modified or dissolved by common consent.
The learned judge who rendered the decision in the first instance in this case, would, of course, admit, on his own reasoning, that, if by the law of nations the right was recognized to property in slaves, the principle would apply to that species of property as well as to any other, and its inviolability would be upheld whenever its owner was passing with it through any territory of the family of nations. Can it be disputed that the obligations of the States of this Union towards each other are less imperative than those of the family of nations would be towards each other, if a right to this species of property was recognized by the implied compact by which their conduct is regulated. The position, therefore, of the learned judge, and of the general term, can only be maintained on the supposition that the compact which binds the States together does not recognize the right to the labor and service of slaves as property; and that each State is at liberty to act towards other States, in this matter, according to its own particular opinions in relation to the justice or expediency of holding such property. It may be, therefore, necessary more particularly, though briefly, to inquire what were and what had been the circumstances of the original States, in relation to this subject, at the time of the adoption of the present Constitution; what was the common understanding in relation to it, as pointed out by the debates in the Convention, and what does the Constitution itself, by express provisions or necessary implication, indicate on this ever important subject.
When this Constitution was adopted by the deliberate consent of the States and the people, slavery existed in every State, except Massachusetts and New Hampshire. It had existed in all the New England colonies from a very early period. The four colonies of Massachusetts Bay, Plymouth, Connecticut and New Haven, had formed a confederation, in which, among other things, they had stipulated with each other for the restoration of runaway servants, "and," to employ the language of Mr. Curtis ( History of the Constitution of the United States, 2d vol., 453, 454), "there is undoubted evidence that African slaves, as other persons in servitude, were included in this provision. Slavery in Massachusetts had not been confined to Africans, but included Indians captured in war, and persons of our race condemned for crimes. The early colonists of Massachusetts held and practiced the law of Moses." "They regarded it," said the same writer in a note, "as lawful to buy and sell slaves taken in lawful war, or reduced to servitude by judicial sentence, and placed them under the same privileges as those given by the Mosaic law."
Slavery had not only existed for a long period in all the colonies, but at the time of the formation of the Constitution it was likely to continue to exist for a long time in the greater number of the States. In five of them the slave population, composed of the African race, was very numerous, while in the other States they were comparatively few. It was in this condition of things that the representatives of the States assembled to frame a Constitution for their more perfect union, and for the common preservation of their rights, not only from external attacks, but from internal aggression. Their deliberations began with the conviction and acknowledgment that property in slaves existed to a great extent in nearly all the States; and soon it became necessary to consider whether the slave population should be included in the ratio of representation. They must be regarded, in order to make a satisfactory provision on this subject, indispensable to the completion of the Constitution, either as persons or as chattels, or as both. "In framing the new Union, it was equally necessary, as soon as the equality of the representation by States should give place to a proportional and unequal representation, to regard the inhabitants in one or the other capacity, or in both capacities, or leave the States in which they were found, and to which their position was a matter of grave importance, out of the Union." ( Curtis' Hist. Const. U.S., 20, 22.) And what was the result of those convictions and deliberations? Undoubtedly, that while slavery should be deemed a local institution, depending upon the power of each State to determine what persons should share in the civil and political rights of the community, the right is fully recognized in the Constitution, that any of the States may continue and allow the right of property in the labor and service of slaves.
The portions of the Constitution more directly bearing on this subject are the 3d subdivision of the 2d section of the 1st article, and the 3d subdivision of the 2d section of the 4th article. The former relates to the apportionment of representatives and direct taxes, necessarily compelling a discrimination between the different classes of inhabitants. It was contended, on behalf of some of the northern States, that slaves ought not to be included in the numerical rule of representation. Slaves, it was contended, are considered as property, and not as persons, and, therefore, ought to be comprehended in estimates of taxation, which are founded on property, and to be excluded from representation, which is regulated by a census of persons. The representatives of the southern States, on the other hand, contended that slaves were not considered merely as property, but that they were also considered as persons; and Mr. Jay, in his paper on this subject in the Federalist, which, recollect, was published before the submission of the Constitution for ratification by the States, says "the true state of the case is, that they partake of both these qualities; being considered by our laws in some respects as persons, and in other respects as property." "The Federal Constitution," he adds, "therefore decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and property."
But in addition to this, if anything can be necessary, it has been adjudicated in the celebrated Dred Scott case, in a court whose decisions on this subject are controlling, that the Constitution of the United States recognizes slaves as property, and this is an essential element of the decision. Chief Justice TANEY, who delivered the opinion of the court, says:
"The only two provisions which point to them and include them, treat them as property, and make it the duty of the government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a government of special, delegated powers, no authority beyond these two provisions can be constitutionally exercised. The government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society may require. The States evidently intended to reserve this power exclusively to themselves.
"No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself, by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty."
Moreover, besides the necessary implication from the avowed purpose of the 3d subdivision of the 2d section, article 1st, of the National Constitution, the language itself recognizes the condition of slavery. It says: "Representatives and direct taxes shall be apportioned among the several States, which shall be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." What other persons? The words are employed in direct contrast to free persons, and indisputably mean persons not free. It has been asserted, with an air of triumph, that the word "slave" is not employed in the Constitution. This was a matter of taste, I suppose, about which the members of the Convention did not think it worth while to contend. They had a higher and more practical purpose than to indulge any strife about a word; they were dealing with things — with realities; and, instead of calling those "slaves," who, in the apportionment of representatives and direct taxes, were to be added to free persons, they called them "other persons" — of course persons not free.
If, then, by the law of nations, the citizen of one government has a right of passage with what is recognized as property by that law, through the territory of another, peaceably, and that too without the latter's acquiring any right of control over the person or property, is not a citizen of any State of this confederacy entitled, under the compact upon which it is founded, to a right of passage through the territory of any other State, with what that compact recognises as property, without the latter's acquiring any right of control over that property.
Surely, this compact of sovereignties is not less obligatory on the parties to it, than is the law of nations on those who are subject to it. Is the one in derogation of the other? or does it not rather magnify and render more precise and tangible, and greatly extend, the duties and obligations imported by the law of nations? This inviolability of the slave property of the citizens of other States, while passing through the territory of free States, in analogy to the principle of the law of nations, to which I have adverted, clearly in no way interferes with the supreme authority of each State over those persons and things that come within the range of its dominion. By universal law, every sovereign and independent community has complete and supreme dominion over every person and thing within its territory, not there for the purpose of passing through it, or not there in the capacity of ambassadors from foreign nations, or their servants.
But, it is asserted, that the privilege accorded to the citizens of one foreign nation to pass unmolested with their property through the territory of any other, is founded merely on comity. If by this is meant that the nation within whose territory the property of a stranger is confiscated, is not responsible for its acts in that respect, the idea is incorrect. Such an act would be a valid cause for a resort to the only method by which nations can obtain redress after remonstrance or negotiation fails; but if it is meant that these words import that the judicial tribunals can only administer the law as declared by the law-making power of their own particular nation, and the injured nation can only seek peaceable redress by appealing to the executive, and through it to the law-making power, the proposition is correct. But, as I have shown, the relations of the different States of this Union towards each other are of a much closer and more positive nature than those between foreign nations towards each other. For many purposes they are one nation; war between them is legally impossible; and this comity, impliedly recognized by the law of nations, ripens, in the compact cementing these States, into an express conventional obligation, which is not to be enforced by an appeal to arms, but to be recognized and enforced by the judicial tribunals.
The error into which the judge who decided this case in the first instance fell, consisted in supposing, because the law of nations refused to recognize slaves as property, the several States of this Union were at liberty to do the same; forgetting that the compact, by which the latter are governed in their relation towards each other, modifies the law of nations in this respect; and while each particular State is at liberty to abolish or retain slavery in reference to its own inhabitants and within its own borders, as its sense of right or expediency may dictate, it is not permitted in its dealings or intercourse with other States or their inhabitants to ignore the right to property in the labor and service of persons in transitu from those States. The Supreme Court having fallen into the same error, their order should be reversed.
To avoid the possibility of misapprehension, I will briefly recapitulate the positions which I hold in the foregoing opinion:
Every State is at liberty, in reference to all who come within its territory, with the intent of taking up their abode in it for any length of time, to declare what can or cannot be held as property. As, however, by the law or implied agreement which regulates the intercourse of separate and independent nations towards each other, all things belonging to the citizen of anyone nation, recognized as property by that law, are exempt in their passage through the territory of any other, from all interference and control of the latter; so, a fortiori, by the positive compact which regulates the dealings and intercourse of these States towards each other, things belonging to the citizen of any one State, recognized as property by that compact, are exempt, in their passage through the territory of any other State, from all interference and control of the latter. The right to the labor and service of persons held in slavery, is incontestably recognized as property in the Constitution of the United States. The right yielded by what is termed comity under the law of nations, ripens, in necessary accordance with the declared purpose and tenor of the Constitution of the United States, into a conventional obligation, essential to its contemplated and thorough operation as an instrument of federative and national government. While the violation of the right yielded by what is termed comity under the law of nations, would, under certain circumstances, be a just cause of war, the rights growing out of this conventional obligation are properly within the cognizance of the judicial tribunals, which they are bound to recognize and enforce.
That portion of the act of the Legislature of this State which declares that a slave brought into it belonging to a person not an inhabitant of it shall be free, is unconstitutional and void, so far as it applies to a citizen of any other State of this Union, where the right to property in the service and labor of slaves exists, who is passing through this State, and who has no intention of remaining here a moment longer than the exigencies of his journey require.
COMSTOCK, Ch. J., observed in substance, that since the last term of the court, his time had been wholly occupied in an examination of other causes argued at that term. To this case, therefore, he had not yet been able to give the attention which its importance might justify. He had no hesitation in declaring it to be his opinion that the legislation of this State, on which the question in the case depends, is directly opposed to the rules of comity and justice which ought to regulate intercourse between the States of this Union; and he was not prepared to hold that such legislation does not violate the obligations imposed on all the States by the Federal Constitution. Without, however, wishing to delay the decision which a majority of his brethren were prepared to make, he contented himself with dissenting from the judgment.