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 the 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."

In this view Judge Clerke mentions some historical facts, and cites Judge Taney's language, 19 How. 425 (ante, 296, 297), that the Constitution recognizes slaves as property, and then referring to the international law or doctrine of comity, observes, ib. pp. 642:-"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." On p. 642, Judge Clerke recapitulates his positions.'

The brief remarks of Judges Comstock and Selden, in dissenting, seem to lean to the same view of an international law or rule of comity which receives from the general compact such a force and operation that the judiciary may overrule the action of the legislature. But they make no special

1According to Judge Clerke's positions, the claim in these cases may be urged on a fourth ground, besides those already distinguished (ante, p. 358), viz:-As being supported by private international law, indefinitely extended under judicial views of the mutual obligations of the States, and having the force of national positive law by being contained in the Constitution.

mention of this particular provision, and they do not speak of Judge Clerke's reasoning.

§ 674. In Anderson v. Poindexter (1856), 6 Ohio, 623, the question was of the recognition of notes given for the freedom of the defendant, who had been held by the plaintiff as a slave in Kentucky; the defendant having, before the giving of the notes, been in Ohio for temporary purposes, from which place he had voluntarily returned to Kentucky. The court agreed in holding the notes void. The several judges discussed at great length the effect of a temporary visit to Ohio with the owner's consent, on the status of the defendant after his voluntary return. In the plaintiff's points no mention is made of this provision of the fourth Article; nor is it spoken of in the opinions of Justices Bowen, Brinckerhoff, and Swan, who held the notes given without consideration, on the ground that the defendant was a free person at the time. Bartley, Ch. J., regarded the defendant as a slave, and therefore incapable of making a contract. From the portion of his opinion given in the note,' it will be seen that this Judge

1 After maintaining that, on the doctrine of international comity, the court should recognize the defendant while in Ohio on his master's errand as being still a slave, Judge Bartley (6 Ohio, 686) makes the following observations (italicized as in the report): "This rule of law, founded upon comity prevailing among the distinct and independent nations of the earth, rests upon still higher obligations among the people of the several States of the American Union. Having entered into a league of friendship and solemn compact with each other, as the basis of a confederated government, designed to provide for the common defense and general welfare of the several States, to secure to each its liberty and to establish justice and insure domestic tranquillity, they established intimate relations, and laid the foundation for unrestricted and free commercial and social intercourse between the people of the several States; and that, too, when the relation of master and slave actually existed, to some extent, in every State of the confederacy. Having guaranteed to the people of each State inviolability in their rights of private property [1] and se curity in their domestic tranquillity; having declared that the powers enumerated in the Constitution should not be construed to deny or disparage the rights retained by the people; and having guaranteed the sovereignty and independence of each State, subject only to the powers delegated to the confederacy, they recognized the relation of master and servant, secured the return of fugitives from servitude, and provided expressly, that 'Full faith and credit shall be given in each State, to the public acts, records, and judicial proceedings of every other State,' and that ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens

in the several States.'

"United upon such intimate relations, for such purposes, and upon such terms, under the same confederated government, the people of each State are bound, if not by the express obligations, certainly by the spirit and true intent of the compact, to regard with the strictest fidelity, and in the most amicable spirit of reciprocity, all the peculiar rights of the people of each other State which separate

held doctrines similar to those of Judge Clerke in the Lemmon case, and also would give to the first section of this Article that operation for which Mr. Cobb, as noted in a previous chapter, has contended.'

$675. It is evident that if the law of the State in which the slaveholding citizen from another State may appear is the standard of the rights incident to citizenship, there can be no support given to his claim of ownership by this provision.

It has been seen that this standard is that which is best supported by the authorities bearing on the general question,' and that this particular claim has hitherto been uniformly denied in the free States on this ground.

It has been seen that there are no authorities which broadly state that the rights incident to "the citizens of each State" in the State of domicil are to be the standard of the privileges and immunities guaranteed by this provision, and from the opinions of those who would recognize the master's claim in the circumstances indicated, as supported by it, it may be gathered that they regard his right as included among the privileges and immunities of citizenship, as known by some standard common to the parties who established the Constitution.

§ 676. In the argument heretofore presented, on the question of the measure of these guaranteed rights, it was concluded that the effect of this clause was to continue the pre

and independent nations in their intercourse with each other recognize in regard to the ordinary rights of persons and property, upon the ground of comity. Without this, the harmony required to insure domestic tranquillity' and the free commercial and social intercourse between the people of the several States, essential to the great purposes of the confederacy, cannot be secured. The citizens of each State cannot expect long to enjoy all the privileges and immunities of citizens in the several States,' unless each State maintains a scrupulous regard for comity and reciprocity in this respect. A citizen of Ohio, passing through Kentucky, or going into that State on business, either with his property, or with persons under his guardianship, would expect to be protected in his rights of person and property, held by the laws of his place of domicil, under the full faith and credit' required to be given to the public acts of his State. But if a citizen of Kentucky cannot pass through Ohio, accompanied by his servant, or send his servant into this State on a mere errand, without being divested of his rights secured to him by the public acts of the State of his domicil, there is an end to that comity and reciprocity between the two States required by their relations toward each other as members of the federal compact, which is essential to harmony and unrestricted intercourse between the people of the two States. And such a course on the part of Ohio will subject her citizens to retaliating measures on the part of Kentucky." 'Ante, p. 262, note 2. 2 Ante, p. 352.

existing quasi-international law of the colonies so far as it contained a common standard of the rights of a citizen of one locality when appearing as a domestic alien within

another.

It has been shown in the former part of the work that so far as the common law of England, operating as a personal law with national extent in the colonies or the States, was the standard of these rights, it did not maintain the claim of a slave-owner.'

677. It may be urged that some rights, though not recog nized by the common law of England having this extent in the colonies and States, may have been recognized by that law which had international operation in the colonies and States, and took effect also as personal law.

But the question here is rather of rights supported by law resting on imperial and national authority, and it has been seen that the right of slave-ownership was thus supported only, if ever, so long as property in slaves rested on universal jurisprudence, and that afterwards it was dependent for its recognition upon private international law, as received and allowed in each colony or several State in the independent exercise of its local sovereignty.' Therefore, admitting the private international law prevailing in the colonies or States before the adoption of the Constitution to be the standard of these privileges and immunities, and that rights recognized by international law receive additional force and guaranty from this provision, it does not give the right in a non-slaveholding State; for there, according to the principles of international private law as understood at the time of the adoption of the Constitution, the right is not to be recognized.

§ 678. So, too, even if it were to be admitted that private international law, or the doctrine of a comity to be administered by judicial tribunals, did or does allow or require such tribunals to accord to the alien slaveholder the right of passage or transit either at his pleasure, or at his convenience, or at his necessity, with his slave or bond-servant, it is also plain that

this action of the court is founded only on the presumed intention of the lawgiver of the forum of jurisdiction-the several State, in this instance. Therefore, even if a State court may or should, in applying this doctrine of comity in the absence of any more direct evidence of the State's will, recognize the slaveholder's claim in these circumstances, yet the power of the State itself, to declare what it will or will not do out of comity, is not restricted. The judiciary is to enforce the will of the State in this matter of international comity, and not its own idea of what comity may dictate. In expressing the will of the State in this matter, the legislature is superior to the judiciary, as in all matters within the "reserved powers" of the States, if there is no restriction in the State constitution.'

Besides, this doctrine of courts determining the rights of private persons by their conception of what international comity may require of the nation, country, or State whose law they administer, is simply a delusive error, as in the second chapter of this work it has been attempted to show. The real basis of the slave-owner's claim, wherever it can be recognized, must be the judicial presumption in favor of the continuance of relations created by the law of another jurisdiction; when not inconsistent with some right or obligation universally attributed in the forum of jurisdiction.'

§ 679. If the argument is—that the intention of the provision is to secure against State legislation all rights which, at the time of the formation of the Constitution, were allowed by private international law as then received; that the right of a non-resident slaveholder to pass and repass with slaves, was a right so allowed-it appears that the major proposition of the

2

See ante, §§ 78, 122. Denio, J., 20 N. Y. 609.

Ante, §§ 88, 116.

The proposition appears in Judge Clerke's opinion, ante, p. 364, though it is there merged in the much broader doctrine, that the effect of the Constitution is to create a general inter-State comity, the application of which devolves upon the judiciary as charged with the execution of the Constitution as the supreme law of the land; that this comity is equally a restriction on the legislative power as are the grants of power to a national government or the enumerated restrictions on the States. This indefinitely vast branch of national law is derived by Judge Clerke, it is to be noticed, not merely by interpretation and construction of the several clauses of the Fourth Article, but simply from the idea of the Constitution. The doctrine may have been, for the first time, broadly stated in a judicial opinion in the Ohio case, by Judge Bartley, though it is not altogether new. VOL. II.-24