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States to hold slaves during temporary sojourn within the limits of a State in which the status of slavery is not recognized by the local law. It will be noticed that Judge Baldwin first made the law of some one State the standard of whatever may be recognized in that State as the object of commerce under the Constitution, and then made the law of the State of the citizen's domicil the standard of those privileges and immunities of citizenship to which, under the provision in the fourth Article, he is entitled in every other State.

The question, of the power of Congress in respect to the domestic slave trade, will not here be examined on principle; except by observing that, so far as its answer depends on the question, whether slaves are or are not property, it will be consistent with the conclusions arrived at in discussing other questions in this work to say that, in their transfer from one State to another, slaves must, in view of the national law, always be regarded as persons. Whether the transportation of persons from one State to another can be regarded as a subject of that commerce between the States which, by the Constitution, is within the legislative power of Congress, is a question which will not be here examined.'

§ 965. It has been already remarked that the claim of an owner, being a citizen of some State, to slave property in some other State in which he appears as a domestic alien, may be urged, first, as supported by the guarantee to the citizens of each State, in the first paragraph of the second section of the fourth Article, of the privileges of citizens in the several States; or, second, as a special case, supported by the fugitive-slave provision in the third paragraph of the same section. To complete the examination of the various grounds on which such a claim has been urged, it remains to examine, thirdly, how far the same be supported by that private international law which, in each State, is identified in authority with the local law, the effect of which on conditions of freedom and its contraries is considered in this chapter.

'Ante, § 671.

On this question, see the various judicial opinions in The Passenger Cases, 7 Howard, 283-573, and the note ante, p. 840.

This law may be in part derived from the positive legislative enactment of the State. The State statutes which may affect the international recognition of slavery, or of rights of ownership in respect to slaves, in the several States, have been given in the abstracts of State statutes. It remains only to consider how far the claim above spoken of may be supported by private international law, as ordinarily received, having in each State the character of customary or unwritten law.'

On the supposition that the case of fugitive slaves is to be determined exclusively by the constitutional provision and the laws of Congress, the claim above spoken of is only to be considered as occurring when slaves may have been brought, with their master's consent, from the State by whose laws they had been held to service, into some other State.

On the supposition that the several States may be distinguished as slaveholding or non-slaveholding, and that in each of the slaveholding States the owner domiciled in some other slaveholding State may, by the customary international law, remove the slave whom he has brought with him voluntarily, or without any overruling necessity, for temporary stay or sojourn, the claim above spoken of is only to be considered as occurring when slaves have been brought by their master's consent from some State by whose laws they had been held to service, into some non-slaveholding State.

The authorities bearing on this question cannot be here given fully and in proper order of time, or critically examined. But it may be noticed, as a consequence of the fact that the law which in any one State is to determine the question when it arises depends solely on the several will of such State, that the decisions of the courts of the non-slaveholding States are those from which only the general rule can be derived.'

The cases bearing most directly on this question have already been cited in considering whether this claim of an owner, being a citizen of a slaveholding State, is supported by any provision in the fourth Article of the Constitution.

1 See the statement, ante, § 671.

It

Dicta of courts of slaveholding States on this subject, e. g., in Rankin v. Lydia, 2 A. K. Marshall, 477, cannot be considered, however positive or unanimous. See, as supporting the claim, the case of Sewall's slaves, 3 Am. Jur. 404, and VOL. II.-49

may be difficult to discriminate, in the judicial opinions supporting the claim, how much reliance is placed upon customary international private law as distinguished from the operation of the constitutional guarantee of the privileges of citizenship; but the present weight of authority seems to be unquestionably against the judicial recognition of the claim, merely as one supported by unwritten international law.'

§ 966. The question may still be distinguished as arising in a case in which the master and slave have, without any voluntary action on the part of the master, or by some overruling physiçal necessity, been found within the limits of a non-slaveholding State. The authorities which have been just cited as denying the owner's claim may not perhaps be inconsistent with the recognition of such claim under these circumstances. The dictum of Judge Shaw, in Commonwealth v. Aves, 18 Pick., is frequently cited: "Nor do we give any opinion upon the case where an owner of a slave, in one State, is bona-fide removing to another State, where slavery is allowed, and in so doing necessarily passes through a free State, or, arriving by accident or necessity, he is compelled to touch or land therein, remaining no longer than necessary. Our geographical position exempts us from the probable necessity of considering such a case, and we give no opinion respecting it.""

Willard v. The People, 4 Scammon (ante, p. 359); against such claim, Commonw. v. Åves, 18 Pick. 193 (ante, p. 359); Commonw. v. Taylor, 3 Metcalf, 72; Jackson v. Bullock, 12 Conn. 38 (ante, p. 359); People v. Lemmon, 6 Sandford's Sup. C. 7, S. C. 26 Barbour, 287, S. C. 20, N. Y. 572. The following cases of claims brought under the fugitive-slave law are sometimes cited as in point: Butler v. Hooper, 1 Wash. C. C. 500; Ex parte Simmons, 4 ib. 596; Commonw. v. Holloway, 2 S. & R. 305; Commonw. v. Alberti, 2 Parsons' Select Cases, 495 (ante, pp. 409, 413), and numerous dicta in other cases.

'Betty's Case, X. Mo. L. R., 455:-" A slave brought by his master into a free State has a right to stay with his master, or not, at his election; and if he elect to remain with his master, no one can interfere with him." See, also, case of Francisco, a slave, of twelve or fourteen years, brought from Cuba to Boston; Am. Jurist, 490. U. S., ex relatione Wheeler, v. Passmore Williamson, 3 Am. Law Reg., 729:-"It is not material that the abduction of the slaves from their master has taken place while the master was in bona fide transit over the soil of a State whose laws prohibit the institution of slavery. Even if the slaves thereby became free, it would not justify their forcible removal, without authority of law, and against their consent and that of their master."

2 The same might be said of the geographical position of New York; but in the case of Lemmon's slaves the respondent returned that she "was passing through the harbor of New York, on her way from Virginia to Texas, when she was compelled by necessity to touch or land, without intending to remain longer than was necessary." 5 Sandford, 683. A question of difficulty-which, in the

It would seem that, if overruling physical necessity and want of consent on the part of the owner will lead to the recognition of the owner's claim in these cases, the claim ought, on the same principle, to be recognized when the slave has come into the non-slaveholding State by escaping secretly, or by violence, from the State where he had been held in slavery. There is in this case as much of overruling physical necessity, so far as the master is concerned, and want of consent on his part, as in the other. But it is admitted that the master's claim to such fugitive rests exclusively on the provision in the Constitution, and would not be recognized on any other ground.'

The argument against recognizing the claim as it might have been made in England or Massachusetts before the adoption of the Constitution of the United States, which was offered in the first volume of this work,' applies with equal or greater force against the recognition of the claim in any State of the Union in which the State law can be judicially understood as attributing the right of personal liberty universally, except as limited by the Constitution of the United States. It is herein. supposed that in Massachusetts and New York, and in most of the non-slaveholding States, the recognition of such claim

absence of any decisions, cannot be here examined-suggests itself, as to the status of slaves, from one of the slaveholding States, being on board an American vessel on the high seas or beyond the jurisdiction of any State. Compare Polydore v. Prince, Ware's Rep., 410.

1

Story's Conflict of Laws, § 96, and cases.

Ante, Ch. VIII., IX. In recent discussions on this topic the law of Prussia has been referred to, and particularly the case of the negro Marcellino, in 1854, whom Dr. Ritter had brought with him from Brazil to Berlin and there claimed to own as a slave, with power to take him back against his will. See the speech of Mr. Sandidge, of Louisiana, in Ho. of Rep., Jan. 17, 1857, in National Intelligencer, Feb. 12, 1857; 1 Cobb on Slavery, 182. The negro brought an action for defamation. The material point in the decisions rendered was, that a person brought from a country where he had been held as a slave might be held as such, in Prussia, by an alien owner sojourning for a limited period. This appears to have been founded on the provision of the Civil Code of Prussia, Allgemeines Landrecht, Theil II., titel 5, § 198, which, translated, is, “Strangers, who are in the king's dominions for a brief period only, retain their rights over the slaves brought with them." I have the certificate of Dr. Heffter, Professor of Law in the University of Berlin, that the law on this point has been changed by an enactment of March 9, 1857, which, translated, is as follows:-"§ 1. Slaves become free from and after the instant they stand on Prussian territory. The master's right of property is from that time extinguished. § 2. All provisions of law contrary to this enactment, and particularly $ 198-208 of Part II., tit. 5, of the Allgemeines Landrecht, are hereby repealed."

by a judicial tribunal is precluded by such a universal attribution of the right of personal liberty.'

967. On the assumption that the slaveowner's claim in these cases is not protected by any provision of the Constitution, it follows that, whatever may be the doctrine under unwritten private international law, it is always competent for the local legislature to declare the slave free, or to prohibit the recognition of the claim to ownership.❜

§ 968. The question as to the status of a person who returns to the State in which he had previously been held as a slave, from one of the free States into which he had passed with the consent of his former owner, is one which, in the particular case, is determined by law deriving its authority solely from the several will of the State which is the forum of jurisdiction. Hence, the only general rule of customary or unwritten private international law in such cases is that which may be gathered from the decisions of the courts of the slaveholding States."

'This attribution of the right of personal liberty to all persons within the forum is entirely distinct from a recognition of the right as given by universal law, or a law which prevails everywhere, or which ought to prevail everywhere, as an immutable law of nature. Lord Mansfield's failure to make this distinction has rendered his opinion in Somerset's case open to criticism (see ante, Vol. I, pp. 192, 376). The tribunal's refusal to recognize the master's claim in this case is not inconsistent with its judicial recognition of the lawfulness of slavery in other jurisdictions, or even its enforcement of rights and obligations growing out of its existence in such jurisdictions (which inconsistency was asserted in Mr. O'Conor's argument, 20 N. Y. 570-572). "It is quite a different question, how far rights acquired and wrongs done to slave property, or contracts made respecting property in countries where slavery is permitted, may be allowed to be redressed or recognized in the judicial tribunals of governments which prohibit slavery." Story, Confl. § 96, a.

2 Ante, $ 683. The authorities and argument, that the claim of the owner in these cases is not supported by the constitutional guarantee of the privileges and immunities of citizens in the fourth Article, has been presented, ante, §§ 672–683. The question, whether the claim is to be determined by national or local law, was incidentally noticed in Dred Scott's case. Mr. Justice Nelson, 19 Howard, 468, said: "The question has been alluded to, on the argument, namely, the right of the master, with his slave, of transit into or through a free State, on business or commercial pursuits, or in the exercise of a federal right, or the discharge of a federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles secured to a common citizen of the Republic under the Constitution of the United States. When that question arises we shall be prepared to decide it."

This was not understood by the majority of the court in Anderson v. Poindexter, 6 Ohio, 622, holding that they would not recognize the defendant as a slave in Kentucky, at the time of making the contract sued on, because he had been allowed to go for temporary purposes into Ohio; though they acknowledged

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