Page images
PDF
EPUB

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 physical 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. Aves, 18 Pick. 193 (ante, p. 359); Commonw. e. 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 e. Hooper, I 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.

1

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; 9 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."

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.

[blocks in formation]

2 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 Constitu tion, 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. L, 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 recog nized 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 s 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

969. Until the decision of the Missouri court in Dred Scott v. Emerson, 15 Missouri, 576,' the courts of the slaveholding States supported with great uniformity the doctrines, that he is not to be deemed free, in the State in which he had been held as a slave, who returns to it or is brought back from a free State into which he had been taken or sent on a bona fide visit or temporary sojourn by his owner or master; and, on the other hand, that he is to be deemed free in the slaveholding State who returns or is brought back from a free State into which he had been carried or sent, either to reside there animo morandi, or to be hired out there for the master's benefit with intent to evade the State law prohibiting slavery or the introduction of slaves."

The cases undoubtedly exhibit varieties of opinion as to what residence on the part of the slave in the non-slaveholding jurisdiction shall, in the slaveholding forum, on his return, be regarded as sufficient to give him a domicil, in the former, upon which a status of freedom may accrue to him which can be recognized under the customary rules of private international law.

that, by the law as generally received in the slaveholding States, such temporary visits would not have been considered as changing his condition in Kentucky. 1 Affirmed in 15 Missouri, 595, and 17 ib., 434.

2

It is unnecessary to classify the cases as supporting one or the other of the doctrines above stated. The two classes of cases incidentally confirm each other. See Virginia cases: Griffith v. Fanny, Gilmer, 144; Lewis v. Fullerton, 1 Randolph, 15; Hunter v. Fulcher, 1 Leigh, 172; Betty v. Horton, 5 Leigh, 615; Commonw. v. Pleasant, 10 Leigh, 697. Maryland cases: Mahoney v. Ashton, 4 Har. & McHenry, 295-325; David v. Porter, 4 Har. & McHenry, 418; Stewart v. Oakes, 5 Har. & Johnson, 107, note. Kentucky cases: Rankin v. Lydia, 2 A. K. Marshall, 467; Bush's Rep. v. White, 3 Monroe, 104; Graham v. Strader, 5 B. Monroe, 181; Strader v. Graham, 7 ib., 635; Davis v. Tingle, 8 ib., 545; Collins v. America, 9 ib., 565; Mercer v. Gilman, 11 ib., 211; Maria v. Kirby, 12 ib., 542; Ferry v. Street, 14 ib., 358. A South Carolina case: Guillemette v. Harper, 4 Rich., 187. Louisiana cases: Lunsford v. Coquillon, 14 Martin, 401; Louis v. Cabarrus, 7 La., 170; Marie Louise v. Marot, 8 La., 479; Frank v. Powell, 11 La., 499; Priscilla Smith v. Smith, 13 La., 445; Elizabeth Thomas v. Generis, 16 La., 483; Josephine v. Poultney, 1 La. Ann., 322; Arsene v. Pigneguy, 2 ib., 620; Liza v. Puissant, 7 ib., 80. The alteration of the rule by the Legislature, in 1846, is noticed in Eugenie v. Preval, 2 La. Ann., 180; Conant v. Guisnard, ib., 696. Missouri cases: Winny v. Whitesides, 1 Missouri, 472; La Grange v. Chouteau, 2 ib., 19; Milly v. Smith, 2 ib., 36; Ralph v. Duncan, 3 ib., 195; Julia v. McKinney, 3 ib., 270; Nat v. Ruddle, 3 ib., 400; Rachel v. Walker, 4 ib., 350; Wilson v. Melvin, 4 ib., 592; Vaughan v. Williams, 3 McLean, 530; Robert v. Melugen, 9 Missouri, 169, and the dissenting opinion of Gamble, Ch. J., in Dred Scott v. Emerson, 15 Missouri, 576.

3

Ante, §§ 54, 121, 320: In Mahoney v. Ashton (1799), 4 Har. & McHen., 295–

Domicil is a topic which it is difficult to bring within fixed rules. It may be supposed that some intention on the part of the slave to acquire free status under the law of the non-slaveholding State should appear, in order that he should be regarded as free on revisiting the forum in which he had been a slave. In instances where the stay of master and slave has been protracted, and, to all appearance, in view of residence, it seems difficult to recognize the slavery on the return, though the slave may have continued to serve voluntarily, without assuming that slavery has existed during the interval in a State where there was no law to support it. On the other hand, it may be equally unreasonable to recognize a status of freedom as acquired by any assertion of liberty during a very brief stay in the State whose law accords it.

The instances which most occasion doubt seem to be those in which, on the occasion of bona fide visit, transit, or temporary residence in a non-slaveholding State, the slave has claimed his freedom and it has been judicially awarded to him by a court of such State. The courts of the slaveholding States are generally unwilling to recognize the party as free on returning to the jurisdiction in which he had been held as

a slave."

$970. In the case of Dred Scott v. Emerson, 15 Missouri (1852), 576, the Supreme Court of Missouri avowedly aban325, the claim for freedom was based on the fact that the petitioner's ancestor had been taken from Barbados to England and brought thence to Maryland between the years 1678 and 1681. The decision against the claim is based on the idea that a slave did not become a free person at that time in England, and also that the Maryland statute of 1715 would have re-established a condition of slavery. The arguments and opinions show the conflict of opinion as to the law of England, as expounded in the then recent case of Somerset.

Phillimore on Domicil, 15.

* Compare ante, § 320. In Commonwealth . Aves, 18 Pick., 218, Judge Shaw said: "From the principle above stated, on which a slave brought here becomes free, to wit, that he becomes entitled to the protection of our laws, it would seem to follow, as a necessary conclusion, that if the slave waives the protection of those laws and returns to the State where he is held as a slave, his condition is not changed." See also the distinction made, and cases noted, by Curtis, J., 19 How., 591, 592. Also President Tucker's Opinion in Betty v. Horton, ante, p. 28, note. Argue from Calvert e. Steamboat Timoleon, 15 Missouri, 596.

Davis e. Jaquin, 5 Har. & Johns., 100, 109; Lewis e. Fullerton, 1 Rand., 15: Maria . Kirby, 12 B. Monroe, 519. The slave having been carried out of the slaveholding State, in order to effect emancipation, contrary to the law of the State, it was not recognized in Hinds v. Brazealle, 2 How. Mississippi, 837; Shaw v. Brown, 35 Mississippi, 246; Mary e. Brown, 5 La. Ann., 269.

« PreviousContinue »