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 *Page 633 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 These exceptions were repealed by an act passed May 25, 1841, amending the Revised Statutes in relation to persons held in slavery.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, *Page 634 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 *Page 635 (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 *Page 636 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 *Page 637 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 *Page 638 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 (Historyof 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 *Page 639 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 *Page 640 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 *Page 641 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 *Page 642 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 *Page 643 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 *Page 644 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.