the question has been presented singly for adjudication. According to the synthetical arrangement of the international questions arising in respect to the recognition of slavery which is herein followed, the cases in which these dicta have been given will appropriately be arranged under other issues. It will be seen by the analysis of any supposed case, that the owner's claim, he being a citizen of some State, to slave property in some other State in which he appears as domestic alien, may be urged on one or more of three distinct grounds:

1. As being supported by this provision.

2. As being a special case supported by another provision in this Article.

3. As being supported by private international law, as ordinarily received and without reference to the Constitution of the United States.

In most of the reported cases in which a claim of this kind has been made, it has been founded on the second of these grounds, in the case of a fugitive from service. But in the greater number of cases wherein such a claim made in a non-slaveholding State has been maintained, it is at the same time judicially affirmed or implied that the claim could not be maintained on any other ground.'

The judicial dicta affirming the claim on this ground are, it is believed, almost exclusively to be found in the opinions of the courts of the slaveholding States, in declarations of what the courts of the non-slaveholding States ought to decide on this question."

8 672. There are a few cases in which the claim may have

'These cases will be given in Chapter XXV., under the question, Who are fugitives from labor? The cases where the claim to exercise ownership has been denied on the ground that the slave was not fugitive are to be particularly noticed in this connection; as Respublica v. Richards, 2 Dallas, 225; Butler v. Hopper, 1 Wash. C. C. 499; Commonwealth v. Holloway, 2 S. & R. 305.

2 In many cases in the slaveholding States, where the question has been of status after return to the former slave domicil, it has been held that the slave has not acquired freedom by being temporarily within a free State. See cases noted in Cobb's Law of Slavery, pp. 216, 217. In most of these the unwritten international law alone is relied on as thus supporting slavery in the free State. In Lewis r. Fullerton (1821), 1 Rand. 22, and Julia v. McKinney (1833), 3 Missouri, 272, judicial dicta attribute the same consequence to this provision. The doctrine was alluded to in argument in Dred Scott's case, but not regarded by the court. See Nelson, J., 19 How. 468.

been based on the first and third of the grounds above enumerated.

In the case of Sewall's slaves (1829), 3 Am. Jurist, 404, it was held that the owner of slaves emigrating from Virginia to Missouri was to be recognized as owner while passing through Indiana. But the judge attributed this consequence to the unwritten international law; and says expressly: "But this right, I conceive, cannot be derived from any provision of positive law."

In Willard v. The People (1843), 4 Scammon, 461, the right of a slave-owner from Kentucky passing through Illinois, was maintained on the doctrine of international comity. But in the opinion of the court, ib. 471, it is also said that, were such owners to be regarded as foreigners, "we could not deny them. this international right without a violation of our duty. Much less could we disregard their constitutional right as citizens of one of the States to all the rights, immunities, and privileges of citizens of the several States." Lockwood, J., in a separate opinion, relied entirely on the doctrine of international comity, to be applied at the discretion of the courts.'

In Commonwealth v. Aves (1836), 18 Pick. 193, also known as Med's case, the owner, a citizen of Louisiana, had brought the slave to Boston, intending to remain there a few months. The claim of the owner was disallowed. Shaw, Ch. J., delivering the opinion of the court, said: "The Constitution and laws of the United States, then, are confined to cases of slaves escaping from other States and coming within the limits of this State, without the consent and against the will of their masters, and cannot by any sound construction extend to a case where the slave does not escape," &c.

The case Jackson v. Bullock (1837), 12 Conn. p. 38, arose out of similar circumstances, and was decided in the same manner. Williams, Ch. J., held and said it had been conceded that the owner, a citizen of Georgia, could claim "nothing by

This judge states the doctrine very broadly (4 Scam. 474), saying that from the authorities he cites, "the conclusion follows that the courts of this State have the power, independent of legislature enactment, under the law of comity and the exercise of a sound discretion, of determining what laws of other States shall be exercised and enforced in this."

the law of comity, and nothing under the Constitution of the United States." Ib. 53.

Bissell, J., dissented, with Church, J., from the majority, but said, ib. 55, "I do not found my opinion in this case upon the fact that the respondent is a citizen of a sister State rather than a foreigner; nor upon any principle of comity growing out of the Constitution of the United States, although one object of the Constitution, undoubtedly, was to abolish alienage and to promote a free and unembarrassed intercourse between the citizens of the different States in the Union."

§ 673. In the case of Lemmon's slaves, in New York, the slaves had been brought from Virginia and kept in New York with the design of carrying them to Texas. Judge Paine, before whom the writ of habeas corpus was returned, decided, Nov. 13, 1852, against the claim of the owner, and in his opinion spoke of the reliance in the case on this clause of the Constitution and the reference to the cases in Indiana and Illinois above cited, and said (6 Sandford's N. Y. Superior Court Reports, 713), "I think this remark must have found its way into the opinion of the judge who decided the Illinois case, without due consideration. I have always understood that provision of the Constitution to mean (at least so far as this case is concerned), that a citizen who was absent from his own State, and in some other State, was entitled, while there, to all the privileges of citizens of that State, and I have never heard of any other or different meaning being given to it. It would be absurd to say that while in the sister State he is entitled to all the privileges secured to citizens by the laws of all the several States, or even of his own State; for that would be to confound all territorial limits, and give to the States not only an entire community, but a perfect confusion of laws. If I am right in this view of the matter, the clause of the Constitution relied upon cannot help the respondent; for if he is entitled, while there, to those privileges only which the citizens of this State possess, he cannot hold his slaves."

In the brief opinion of the Supreme Court on hearing the appeal in this case, delivered by Judge Mitchell, it is said (26 Barbour, 287), "Comity does not require any State to extend

any greater privileges to the citizen of another State than it grants to its own. As this State does not allow its own citizens to bring a slave here even in transitu, and hold him as a slave for any portion of time, it cannot be expected to allow the citizens of another State to do so. Subdivision 1, of section 2, of Article 4 of the Constitution of the United States, makes this measure of comity a right, but with the limitation above stated, it gives to the citizen of a sister State only the same privileges and immunities in our State which our laws give to our own citizens. It declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."

The decision of the Supreme Court was confirmed, March term, 1860, by a majority of the Court of Appeals, consisting of Judges Denio, Wright, Davies, Bacon, and Welles. The dissenting judges were Judges Clerke, Comstock, and Selden.

The portion of Judge Denio's Opinion having most direct bearing on the question here considered has already been cited. On p. 609 of the report, the Judge further expressed his views by supposing the consequences which would follow from the recognition of the right claimed in this instance. On p. 610 he says: "My opinion is, that the appellant 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 the clause of the Constitution referred to has no application to the case."

In a concurring Opinion, Judge Wright noticed, ib., 626, that this provision was "invoked as having some bearing on the question of the plaintiff's right," and said "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." The judge then referred to the article of Confederation, and the substitution of citizens in this provision for free inhabitants, as indicating an intentional non-recognition of slavery. He argues that if the owner's claim is thus supported, "then Judge Story and the Federal court fell into a great error in the opinion that if it were not for the fugitiveslave provision, New York would have been at liberty to have declared free all slaves coming within her limits," and that Judge Taney also' must have erred in "declaring that there was nothing in the Constitution to control the action of a State in relation to slavery within her limits;" adding, "But it seems a work of supererogation to pursue this inquiry."

In affirming the judgment of the Supreme Court, Davies, Bacon, and Welles, JJ., concurred, but delivered no opinions. Judges Clerke, Comstock, and Selden dissented. An opinion was delivered only by Judge Clerke, who maintained the appellant's right in respect to the slaves, as given by private international law; holding them to be property which, under the right of international transit, was protected as against the law of the forum. The question in this view belongs to another chapter. But the judge seems also to have regarded this right as upheld by the Constitution of the United States, and to refer to this clause particularly as having that effect.

Judge Clerke, ib. 634, states first the question of the intention of the legislature, concluding, "It evidently intended to declare that all slaves voluntarily brought into this State under any circumstances whatever, should become instantly free." He then says, "But it is a question of much greater difficulty, whether they had the constitutional power to do so."

The judge proceeds to say,-"New York is a member of a confederacy of free and sovereign States, united for certain specific and limited purposes under a solemn and written cov

The allusion is probably to opinions in Prigg's case.