Mitchell v. Wells

Handy, J.,

delivered the following dissenting opinion.

I cannot concur in the views of this case taken by the majority of the court. Many of the views taken in the opinion of the court have, in my judgment, no application to the questions we are called upon to decide in the ease before us. The abstract policy of slavery, or of the manumission or freedom of slaves, is a question not belonging to this forum, nor proper to be determined by it. We are sitting as a court to adjudicate whether an emancipated slave has certain legal rights claimed by her. We have no right to establish or enlarge the policy of the State as to freedom or slavery, as defined by the legislature; our power is confined to deciding what the legal rights of parties are, under the policy as declared by the lawmaking power; and whether that policy is right or wrong, too short or too extended to answer the purposes intended, we have no power to change, modify, or extend it beyond its plain scope. That power pertains to the legislature. In briefly giving my views of the case, I shall, therefore, confine myself to the question: what is the law in relation to the rights of the appellee, as it is found in the statutes of this State, touching the subject, and in the expositions of this court of the private rights and public policy declared and established by those statutes. In coming to a correct conclusion upon this point, I do not think it necessary or proper to go beyond our own statutes and decisions, believing that they furnish the proper and most ample solution of the subject of inquiry.

The question is, whether a person of color,” once domiciled and a slave in this State, but afterwards legally removed to another State of this confederacy, and there manumitted according to the laws of that State, and residing there, can acquire or exercise any civil right whatever in this State, the enjoyment of which does not require the residence or individual presence of such person in this State ? In the opinion of the majority of the court, this question is answered in the negative; and such a person is held to be incapable of suing in our courts, and of asserting any right whatever which such person might have, either of person or of property, according to the law of the State of his residence. Believing, as *266I do, that the law of this State, upon the question, is firmly settled to the contrary of this view, I will proceed, in a very brief manner, to state the grounds of this opinion.

It is stated in the opinion of the court, as the predicate of its main conclusions, that the emancipation of slaves in other States where it is lawful, is not recognized by our laws, as expounded by cei’tain decisions of this court; and that it is contrary to the policy as established by our own statutes and declared by this court, to allow them any rights in this State.

We will be able to determine the correctness of these positions by an examination of the provisions of our Constitution and statutes upon the subject, and the decisions of this court upon those statutes.

And first in the order of time is the Statute of 1822, Hutch. Code, 523, § 75, which authorizes the owner of slaves to emancipate them in this State,, by last will and testament, or deed, upon proof to the legislature of some meritorious act done by the slave to the master, or some distinguished service done to the State, subject to the sanction of the legislature. This act plainly had reference alone to manumissions to be made in this State, and was a restriction upon such acts to operate upon slaves here. By the first section of the article of the revised Constitution, in relation to slaves, the legislature is authorized to pass laws permitting the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge. This provision also manifestly had reference to emancipation to be made, and to take effect, in this State, and recognized the principle that the status of freedom, in the person of color, might exist here without a violation of our domestic policy.

In this condition of our Constitution and statute law, upon the subject, the first case involving the question which came before this court was Hinds v. Brazealle, 2 How. 837. It appears, in that case, that Brazealle, a resident of this State, took his slave to Ohio for the purpose of emancipation there, and with the intention of bringing him back here, and that he accordingly executed a deed of emancipation in Ohio, and immediately brought the slave back to this State, and treated him as free,-and bequeathed him his property. The validity of the emancipation was the question presented to this court, upon this state of case. The court first lays down *267the rule, “ that no State will enforce a contract made by its citizens elsewhere, in violation and in fraud of its lawsand proceeds to show that the alleged emancipation was made for the purpose of taking effect here, and was “ in violation of the declared policy and contrary to the positive law of this Statewhich policy is stated to be, that free negroes are not permitted to immigrate to, or remain in, this State; were allowed few privileges, and subject to heavy penalties for offences, and were required to leave the State within thirty days after notice. And this policy was violated by the return of the person in question to this State from Ohio. The positive law was held to be violated because the alleged emancipation was an evasion of the Statute of 1822, above referred to, placing restrictions upon the right of emancipation ; and the conclusion of the court, referring to the principle first laid down as above stated, is, that the emancipation “ seems to have been planned and executed with the fixed design to evade the rigor of the laws of this State. The act of the party in going to Ohio with the slaves, and there executing the deed, and his immediate return with them to this State, point with unerring certainty to his purpose and object. The laws of this State cannot be thus defrauded of their operation by one of our own citizens,” and as the validity of the deed depended, for these reasons, upon the laws of this State, it is held to be in fraud of them, and void.

The whole scope of this decision plainly is, that the emancipation was made in Ohio to take effect and be enjoyed here, in fraud of our laws, which was shown by the speedy return of the slave here, in contravention of our laws prohibiting free negroes from immigrating to this State; and that nothing is said by the court which can be properly understood to indicate that the bona fide emancipation of slaves in other States according to their laws, and with the intention of remaining there, is contrary to any law or declared policy of this State. If any such doctrine had been asserted, it would clearly have been foreign to the case, and a mere obiter dictum. It is, however, plain that it was not asserted in fact, nor intended to be ; and if there could have been doubt on this point, it would be removed by the explicit declaration of this court in Ross v. Vertner, 5 How. 305-360. In that case, it is said by the court, referring to the case of Hinds v. Brazealle,—Judge Sharkey, who *268delivered the opinion of the eourt in that case, concurring, — “ The deed of emancipation was held void, because, as a contract for freedom, it was to be executed in Mississippi, whose laws and policy forbid it in the mode there attempted, and because the farcical excursion into Ohio by the testator, his. immediate return into this State with his slaves to his former residence, and continuing there as a citizen up to the period of his death, with other circumstances, demonstrated Ms intention to evade the laws of this State, and commit a fraud upon their provisions.” And again, “Thatca.se went on the ground expressed by the court, that the deed of emancipation having been made in Ohio, in pursuance of a scheme planned and executed to evade the rigor of the laws of this State, was to be treated as a deed made in this State, and to be executed here, and therefore clearly void.” Ib.

The case of Ross v. Vertner, which was decided in the year 1840, holds that it is not against the laws or policy of this State for a testator to direct his slaves held in this State to be removed to another State where they may be legally freed, and to' set them free; and states that this is in accordance with the principle recognized in the case of Hinds v. Brazealle, which condemned only emancipation made elsewhere, and to take effect here in fraud of our laws.

The case of Vick v. McDaniel, 3 How. 337, appears to have been an emancipation by will in this State, and the slaves after-wards to be removed beyond this State; and the bequest was held void because the emancipation was to take effect here, and was prohibited by our laws. The same rule is held in Luckey v. Dykes, 2 S. & M., upon a similar will; but the rule in Moss v. Vertner, in relation to the validity of an emancipation by will to take effect in another State, is affirmed.

The next case was Leach v. Cooley, 6 S. & M., decided in 1846, and after the passage of the Act of 1842, but upon a will probated in 1836, manumitting slaves, to take effect in another State. The bequest was held to be valid, and the rule in Ross v. Vertner again affirmed; and the court say, that uthe policy of this State, as evinced by its legislation, is to prevent the increase of free persons of color in this State.”

The same rule is held in Wade v. American Colonization So*269ciety, 7 S. & M., in relation to a bequest for emancipation, to take effect out of this State. The rule in Ross v. Vertner, and in the other cases above cited, is again affirmed; and such bequests of emancipation out of this State are held not to be in violation of the laws or policy of this State. This case, like that of Leach v. Cooley, though decided after the passage of the Act of 1842, which will be presently noticed, was made upon a will which took effect before the passage of that act, and is treated by the court as not affected by that act.

Thus it appears that the rule, up to this time, has been declared and constantly reiterated and acted upon, that “ the policy of this State, as evinced by its legislation, is to prevent the increase of free persons of color in this State,” and that manumissions by deed made in other States, bona fide, conferring freedom tobe exercised there and not here, in evasion of our laws and policy, or by will to take effect in other States, are not in contravention of our laws and policy.

And this being the settled law at the date of the Act of 1842, we are brought to consider that act, and how far it altered the law as then settled, and what are the character and effect of the decisions subsequently made, both in relation to that statute, and the general subject of the rights of free persons of color.

Many of the provisions of the act are unnecessary to be noticed, for the purposes of this ease, and only such will be referred to as have a bearing upon the questions here involved.

The first section requires free negroes and mulattoes, unlawfully in this State, to give security for their good behavior, or, in default, to be sold.

The second section provides, in substance, that all slaves which shall be taken or sent out of this State and emancipated, and shall afterwards be found within the State, shall be proceeded against as free negroes unlawfully in this State.

The eleventh section makes it unlawful thereafter, for any person, “by last will and testament,” to make any bequest of a slave, for the purpose of emancipation, or to direct that any slave shall be removed from this State for the purpose of emancipation elsewhere; and in all wills made for that purpose, before the passage of the act, it should be unlawful for the executor to remove the slaves from this *270State, unless the removal should be made within one year from the passage of the act.

It is obvious, from this statute, that the legislature had in view two objects, 1st, to prohibit free negroes from remaining in this State unlawfully, and to prevent such as might be emancipated out of the State, by owners residing here, from coming into the State; and, 2d, to prohibit emancipation by last will and testament, of slaves held in this State, to take effect in other States. It is abundantly manifest that the statute prohibits emancipation only when attempted to be effected by wills, either made here or affecting slaves being here; for that is the plain and positive extent of the prohibition, and of the change of policy previously established, as recognized by the decisions of this court above cited, in relation to emancipation made by will in this State, to take effect out of the State. That it was not intended further to interfere with the right of the owner to dispose of his slave as he thought fit, in another State, after removal there, or to manumit him there', by deed or lawful act, and to reside there, is most palpable, not only from the entire absence of anything in the statute indicating such an intention, but from the positive recognition of the right of the owner to take his slave to another State and manumit him there, contained in the second section. That section prohibits persons so manumitted from coming into this State, and plainly recognizes them as validly manumitted.

After the passage of this act came the case of Mahorner v. Hooe, 9 S. & M., which involved a will made by a testator domiciled in Virginia, and who died there in the year 1844, directing his slaves in this State to be emancipated, and sent to Africa. The will took effect after the passage of the Act of 1842; and as it operated on slaves in this State, it was contended to be invalid by virtue of that act. On the contrary, it was insisted that the testator, being domiciled in Virginia., by whose laws the will was valid, — its disposition of movable property was governed by the laws of that State, on the general principle that the law of the domicile was the rule of succession and testaments. But the court held that this was a rule of comity, which could not be permitted to prevail against our positive law, — that it was a will emancipating slaves being in this State, whose freedom was to take place out of the State, in contravention of the policy positively declared *271by the Act of 1842, that slaves in this State should not, by last will and testament, be set free, to take effect in another State; that the case came within the principle of that act, and that the rule of comity cannot be allowed to defeat the general policy of a State, declared by the legislative authority;” thus placing the decision directly upon the prohibitory policy, as it was positively declared by the Act of 1842.

The policy which was considered to be contravened by this will, was that declared by the Act of 1842. The mischief plainly contemplated by the section of that act upon which the decision is based, was the manumission of slaves held in this State, by will, to take effect out of the State. That was the extent of the policy of prohibiting emancipation, declared by the act, as appears by its terms, and as is expressly stated in the subsequent case of Read v. Manning, 30 Miss. 308; and to that extent alone does the court, in Mahorner v. Hooe, refer to the policy of the act, and attempt to apply that policy to the case before it. The case appears to be considered by the court as not within the strict letter of the act, because the testator resided in another State; and hence the remark as to it being within the policy declared by the act, as it was the case of a will and an emancipation of slaves here, attempted to be made in the mode prohibited by the act.

That the court did not intend to hold that the Act of 1842 declared any policy prohibitory of emancipations made otherwise than by last will and testament contemplating freedom to take effect in other States or countries, is too clear for controversy. For the decision is placed expressly upon the prohibitory policy declared by that act, and the will is held to be in contravention of that policy. This is not a matter of doubt or inference, but is clear from the entire opinion; for the court is careful to exclude the conclusion that the decision proceeds upon anything but the policy positively declared by the act. After stating that the rule of comity relied on could not be allowed to defeat the policy declared by the statute, the court says: “We have nothing to do with the good or bad policy of the law of 1842; it is sufficient for us.to know that the legislature thought it wise and proper. Courts in this country have not the power to declare policy, except as it may be indicated by the legislature, or result from the spirit and object of statutes.” *272And the following is stated as the conclusion of the matter: “ We accordingly think the Act of 1842 is a valid prohibition, paramount to the rule of comity, which, in the absence of such prohibition, might sustain the bequest on the ground of the testator’s domicile.” And upon this ground alone is the decision placed. The decision, therefore, holds that the rule of comity is abrogated no further than that act does it, and that is as to manumission by will to take effect out of this State, which was the case before the court. -

It will appear beyond controversy, from a careful examination of that case, that there is nothing in it which gives tbe least countenance to the idea, that the manumission of a slave, made bona fide by deed or other legal act, in another State, where the slave has been taken for the purpose by his owner, a resident of this State, is contrary to our laws and policy; or that a person of color, legally free and entitled to rights in another State of this confederacy, can claim no right or remedy in this State under any circumstances. In point of fact, no such doctrine is held or intimated in the case; .and if it had been, it would have been plainly obiter dietiim, and not authoritative. It would, moreover, have been contrary to all previous decisions of the court, and directly in opposition to the recognition of the validity of such emancipations contained in the second section of the act which formed the basis of the rule held in the case.

It appears ,to me clear, therefore, that the case of Mahorner v. Hooe, leaves the questions involved in this case untouched, and furnishes no support to the argument of the majority of the court attempted to be justified by it; and thus far, that no decision of this court gives any sanction to the idea that our laws and policy prohibit emancipations of slaves removed by their owners for the purpose to other States, if made according to the laws there, and not in fraud of our laws.

Much stress is placed by the majority of the' court upon the assumption that the case of Hinds v. Brazealle holds the doctrine that “ the policy of this State is to prevent emancipation,” and that the same doctrine is held in the subsequent cases above noticed. It is clear that no such doctrine is declared in that case; and in the subsequent cases cited, so far as any expression of opinion has been *273made by the court, it is, that the policy of this State, as evinced Toy its legislation, is to prevent the increase of persons of color in this State. Leach v. Cooley; Ross v. Vertner; Wade v. American Colonization Society.

Let us, then, see what is the rule in relation to the status and rights of free persons of color legally emancipated in other States, as held by the decisions subsequent to Mahorner v. Hooe.

The first was Leiper v. Hoffman, 26 Miss., which was a suit by a free person of color, who had removed from this State to Ohio, where she became free by the consent of her owner, and became a resident, to recover real estate in the city of Natchez; and it was held that she was to be considered a free person according to the laws of Ohio, and as such was entitled to sue in the courts of this State, and that our laws do not prohibit the removal of slaves by their owners from this State to another State to become free there, provided it is not done with the intention of their returning here to act as free persons. In that case, also, it is stated — as it had also been previously stated in Ross v. Vertner—that the principle decided in the case of Hinds v. Brazealle was that the deed in that case was void, because made in fraud of our laws; and the decision was against the doctrine that our laws and policy prohibited emancipa-tions by legal act and bona fide made in other States.

Read v. Manning, 30 Miss., already noticed, was a bequest of slaves to be free, and it was held to be void in virtue of the Act of 1842, and the policy of that act is considered to be limited to emancipations by will.

The next case is Lusk v. Lewis, 32 Miss. 297, which was a will bequeathing slaves to the American Colonization Society; and it was held to be in effect a bequest for the purpose of emancipation out of this State, and void under the Act of 1842.

The last case is Shaw v. Brown, at April term, 1858, 35 Miss. 246, which was an emancipation by deed in Ohio and also in Indiana, of certain slaves previously held by their owner in this State, made bona fide, and not with the intention of evading our laws. That case was elaborately discussed by counsel at the bar, and in arguments in writing submitted to the court, and was carefully examined and considered; and in view of all the previous decisions and of the policy of the State as declared by statute, it was held *274that the owner of slaves, in this State, has the right to remove them to another State where the emancipation is allowed, and set them free there ; that that right is not restrained by our laws and policy, but is distinctly recognized by the second section of the Act of 1842, and that it resulted from his absolute right of disposition of them as his property, which our laws do not restrain when so exercised; that the extent of the policy of our laws prohibitory of emancipation is, first, against freeing slaves in this State to become free either here or in another State, and, secondly, against emancipating' them in another State to become residents of this State as free persons; that slaves removed from this State and legally set free in other States, though not “ citizens” within the meaning of the term in the Constitution of the United States, are inhabitants or subjects of those States in which they are domiciled, and as such acquire certain rights there, which should be enforced in the courts of this State, upon principles of international comity, arising from the nature and character of our Federal Union, unless repugnant to our laws and policy, or prejudicial to the public interest; that they might acquire and enforce legal rights here, which did not require their coming into this State; and that “they are only debarred by our laws of the rights secured to them by the laws of other States where they are domiciled, so far as the exercise of these rights may be positively prohibited, or may be directly dangerous to the condition of our slaves, by exposing them to improper interference, or to the mischievous example arising from the presence or influence of the free negro; and that, beyond this, he may enjoy the rights secured to him by the laws of his place of domicile.”

This brings us down to the recent Statute of 1857, Rev. Code, 286, art. 9, which provides, that “it shall not be lawful for any person, either by will, deed, or other conveyance, directly, or in trust, either express or secret, or otherwise, to make any disposition of any slave or slaves for the purpose, or with the intent, to emancipate such slave or slaves in this Stale; or to provide that such slaves be removed to be emancipated elsewhere ; or by any evasion or indirection, so to provide that the Colonization Society, or any donee or grantee, can accomplish the act, intent, or purpose designed to be prohibited by this article,” — prohibiting executors from removing any slave from this State for emancipation, — and “ all *275such wills, deeds, &c., . . . intended to accomplish the emancipation of any slave after the death of the oioner, no matter where made, are declared void.”

It is perfectly manifest that this act extends only to emancipa-tions made to take effect in this State, and to provisions by deed, will, &c., whether made in or out of this State, for the removal of slaves from this State *to be emancipated elsewhere. It merely condenses the provisions of the Acts of 1822 and 1842, with the addition of incorporating the rule in the case of Mahorner v. Hooe, extending the prohibition to wills made out of the State. This is plainly the whole scope of the act.. It has not the least reference to the removal of slaves by the owner to another State, and his emancipation of them there, for the plain reason that the legislature had no power to make such an act void; and the folly of making such an effort should not be imputed to them. But if the act extended, in its terms, to such cases, it could not be construed to have a retrospective effect to destroy rights existing before its passage, as in this case. Murray v. Gibson, 15 How. (U. S.) 421; Garret v. Beaumont, 24 Miss. 377.

Thus we have before us the policy of this State upon the subject of emancipations of slaves in other States, as it has been declared and defined by our statutes, and expounded by this court. We see that the whole scope of these statutes is to prohibit emancipations of slaves in this State, by deed or will, to take effect here or in other States, and emancipations made in other States to be exercised here; and prohibitions against free negroes of other States coming into this State; and that, so far as the legislature has touched the subject of emancipation of slaves made in other States, and according to their laws, by owners who have removed them from this State bona fide for that purpose, such emancipations are recognized as valid. It is needless to inquire into the reasons for this policy. It is sufficient that the legislature has established it, and defined its extent. True, the State will not allow within its limits the exercise of rights contrary to their laws and policy, but we must look to her laws and public declarations of policy as they are judicially known to us, to see what that policy is. The legislature has not thought fit to interdict the enjoyment of any civil right of a free person of color residing in another State, and manu*276mitted according to the law of that State, except to prohibit such persons from coming to, and remaining in, this State. And when we look at the extent of this policy, as expounded and settled by the decisions of this court, we see that, in every case in ivhicli the question has been presented to this court, emancipations by deed, or other legal act, made in other States, bona fide, and not for the purpose of evading our laws, by the return of the slave here, have been held to be valid, and not in contravention of our laws and policy ; and, accordingly, it has been invariably held, that free persons of color, so manumitted in other States, might sue and maintain their legal rights in our courts.

Such-being the policy of the State upon the subject, as defined by legislative acts, and settled by judicial construction of those acts, it appears to me that the decision of the majority of the court is productive of two very dangerous consequences: 1st. To overturn the rule of law as settled and recognized in every case in which it has come under the consideration of this court, upon a question at least doubtful apart from the decisions; and, 2d. To declare a policy for the State which the legislature, in acting upon the subject, has not established, and which is firmly settled, — if anything can be by this court, — not to be within the policy established by the legislature; thus unsettling the law of this court upon the subject, and arrogating to the court the powers of the- legislature, to establish and declare a public policy upon a most important subject — setting a precedent which, if followed, must prostrate the character and usefulness of this court, by rendering the rules held by it fluctuating and uncertain, and invading the legitimate province of the legislature, to institute or extend a matter of public policy.

I have always considered that, except perhaps in questions involving a construction of the Constitution, we were bound to adhere to rules firmly settled and repeatedly sanctioned and reaffirmed by this court, especially those affecting private rights. But if we can-unsettle a rule of property and private right declared, reiterated, and established, as the rights here involved have been, no question may be considered as settled, and no one can feel secure in the rights which he has acquired, acting upon rules settled by this court. All security for private right is destroyed where it depends upon questions which have once been the subject of dispute, but *277have been settled by this court. The individual opinions of the judges, for the time being, and not the laiv as settled, become the rule of action. No man in this State, or out of it, and having, transactions with our citizens, or rights in it, will feel certain that he holds his property or his right upon a firm and settled'rule of law. We are reduced to that “miserable servitude where the law is vague and uncertain.” The conservative character of the court is broken down, and all confidence in the stability of its rules is destroyed in the minds of good citizens. Such a result is, in my judgment, scarcely less deplorable than abolitionism.

Not less dangerous is the doctrine that we have the power to enlarge a policy, by construction, beyond what the legislature has plainly extended it. The safe and wise rule is, that we must conclude that the legislature, to whom the power is committed by our system of 'government, has extended the policy as far as they thought it proper and expedient. Our office is to sustain and enforce that policy so far as the legislature has declared it, and no further ; and, in the case of Mahorner v. Hooe, considered by the majority of the court so important to their view, the court says: “ Courts in this country have not the power to declare policy, except as it may be indicated by direct legislation, or result from the spirit and objects of statutes.” The same rule has been constantly and firmly declared in the construction of our Statutes of Frauds and of Limitations, and other general statutes. And I can see nothing in the subject of slavery and negro emancipation, which makes it an exception to this salutary rule, or enlarges the powers of this court.

If this rule be correct, and it has the universal sanction of the -wisest sages of the law, how can we derive from our statutes the policy of denying to free persons of color, legally free in other States, all civil rights whatever, and say that such a policy is comprehended in them ? If we look to their terms, we find that no such prohibitory policy is included in their provisions. We find that the subject of the rights of such persons, who have been removed to, and legally manumitted in other States, and do not come into this' State, is absolutely untouched by legislative interdict. Every enactment of our statutes, in relation to the emancipation of slaves in other States, and prohibiting their coming to or re*278siding in this State, may be carried out, and yet the free negro in another State may sue for his right of person or of property here. By what implication, or by what reason indicated by these statutes, is this right to be prohibited ? and how is it possible that such right can come within the mischief provided against by these statutes ? If it was the great mischief supposed, it cannot have escaped the attention of the legislature, while they were so frequently legislating upon the general subject of emancipated slaves, and the evils to be apprehended from their condition: and as they have laid no interdict upon such rights, it is to be presumed that they were not intended to be embraced in the legislation, and were not intended to be prohibited.

What power, then, has this court to take the step of saying, as the legislature has failed to provide for such an evil, yet, that it is an evil to our domestic institutions, whose genius is averse to the emancipation of slaves ; and, therefore, we will extend the principle of our institutions and our policy, beyond what the Constitution and laws have interdicted, and debar the free negro of another State of all rights of person and of property in this State ? What is this but judicial legislation of the most decided character ? True, the legislature has not thought fit to exercise its power, which properly pertained to it, upon the doubtful and delicate subject of debarring the inhabitants of the co-States of this confederacy, obnoxious as they are to us as a class of population, of the remedies for the enforcement of their legal rights here, which they may enjoy without coming to, or residing in, this State. But this court will consider such a right inconsistent with correct opinions as to the policy of negro emancipation ; hold that negro emancipation elsewhere is contrary to the principle of our domestic policy ; and supply the defect in legislation, by declaring such rights illegal and contrary to our policy and institutions ! Upon the same principle, in the case of a subject of Great Britain in Canada,-^-free negro though he might be, — whose property was unlawfully taken and brought into this State by one of our citizens, this court might proceed to declare, that no remedy was to be allowed to such British subject by the laws of the land, because he was the subject of a monarchical government, and the policy of our institutions is against monarchy.

*279If we have the right to declare and establish a policy for the State upon this subject, and under the circumstances of this case, then it appears to me, that the power of this court over matters of public policy is limited only by its discretion. It becomes the province of this court to make laws, and not merely to declare what the law is ; and there is very little need for the legislature of the State to pass any further general laws, or to establish any further public policy. The legislature has already passed enactments to a limited extent, and so far as they thought the public interest required, upon most of the subjects of public concern; and these will furnish the germs of judicial legislation which this court can enlarge and expand, according to its ideas of public policy, and the character of our institutions, and $s, in view of the advancement of science and of the light of new theories, the public welfare may, in their judgment, require.

It appears to me, that the doctrine which lies at the foundation of the opinion of the majority of the court, is wrong in principle and dangerous in practice, as a matter of judicial action.

Our policy upon the subject of slavery and slave emancipation is, in principle and in action, a domestic policy. The legislature makes laws for the protection of slavery, and of property in slaves, in this State, and to prevent acts being done or carried out in this State, dangerous to its existence, and to the welfare of that class of population here. All our legislation has reference to the institution within our limits; not because negro emancipation in other States has not been considered by us as an evil, for undoubtedly that is the private opinion of the most enlightened, if not of all, amongst us, and it has the full concurrence of my individual judgment; but because we had no power to interfere with the status of the free negro residing in another State, and legally emancipated, according to the laws of that State, and not in fraud of our laws. Our opinion in relation to the impolicy of tolerating such a class of population in another State, is a mere abstract opinion, which we do not attempt to enforce in any manner upon other States, any more than such State would have the right to complain that we allowed such rights to resident Indians, or for any other matter of our domestic policy. We have no control over, or right to complain of, the internal policy of a sovereign State of the confederacy, in allowing rights of person *280and of property to a free person of color, though we may and do think that that policy is wrong in principle and dangerous in practice. It is a rare thing for governments to attempt to interfere with the rights of the resident subjects of another government; and certainly they are not to be taken and considered as the objects of a hostile policy, unless they are clearly embraced in a public declaration of it. When two governments are under treaty of peace and friendship, the subjects of each would be entitled to all the rights in the jurisdiction of the other, to which they were entitled at home, unless expressly forbidden by the terms of the treaty, or unless plainly prejudicial to the rights or powers of the foreign government, or in contravention of its positive law or public policy. Story’s Confl. Laws, § 88. In governments of written laws, this policy and law are declared and enacted by the lawmaking power. It is matter of positive law: Vattel’s Law of Nations, book 2, § 94; and when that power has not declared a matter to be against the policy of the State, it must be taken not to be prohibited by law, or only so far prohibited as it is clearly declared to be. And especially is this the case, when the government has placed restrictions upon the enjoyment of the rights within its limits, to a certain extent. The exercise of the right, in all other respects, must, in such case, be considered as not interdicted; for the inclusion of the one is the exclusion of the other.

Let us apply these plain principles to our policy in relation to a free person of color of another State.

The whole extent of our declared policy against him is, that he shall not come into this State to reside. We cannot change his condition there, and have not attempted to deny him any such right here as he may enjoy without a violation of the declared policy of this State with regard to him. He is a subject and inhabitant of a co-State of this national confederacy, between which and this State the relation of, at least, a treaty of peace and friendship subsists; and he is entitled to rights of person and of property there, .under her laws, and to the protection of that State in the enjoyment of them. He is entitled to the benefit of the rule, of comity between States to its fullest extent, except so far as it-is denied-by our de.-clared policy. The intimate union of these States,” says' the Supreme Court of the United Statesj “as members of the same *281great political family; tbe deep and vital interests which bind them so closely together, should lead us, in the absence of proof to the contrary, to presume a greater degree of comity, and friendship, and kindness towards one another, than we should be authorized to presume between foreign nations. And when (as without doubt must occasionally happen) the interest or policy of any State requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end. But, until this is done, upon what grounds could this court refuse to administer the law of international comity betzveen these States? They are sovereign States; and the history of the past, and the events which are daily occurring, furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent.” Bank of Augusta v. Earle, 13 Peters, 519, 590.

Suppose a free negro of .another State is abducted and brought into this State, and held in slavery, or his property is taken and brought into this State, or a right belonging to him in this State is withheld, has he no remedy for such a wrong ? He has violated no declared policy of this State; and, as to his personal liberty, he claims the benefit of our law, which provides, “ that any person in this State, who shall conceive himself or herself illegally detained as a slave, in the possession of another, and claiming his or her freedom, shall proceed by petition in the Circuit Court,” &c. Hutch. Code, 523, § 76. Yet he is told that he has been emancipated contrary to our policy, and is entitled to no rights here, and must, therefore, continue a slave. He seeks a remedy by law for his property, which has been unlawfully taken from him and brought into this State, or is unjustly withheld from him here; claiming the benefit of the provision of our Constitution, which gives “ every person” a remedy, by due course of law, for any injury done to him in his person or his property. Article 1, sect. 14. He is told'thát he is an outlaw, and not a “person’’ entitled to sue here, although the statute just referred to designates him as a person,” capable of suing to obtain his freedom in our courts. He is said to be ah alien enemy to our State. If so, there is no restraint in our law'against taking his life. He is entitled to no protection under our laws; and, under the opinion of the majority of the court, as he occupies the position of an alien enemy, and is entitled to no rights or- pro*282tection here except such as are positively conferred by our laws, and none such are conferred, he must be regarded as an alien enemy was by the barbarian rules which prevailed in the dark ages, and which the majority of the court appear to sanction as still in force; and, by virtue of these rules, any man here has the right to kill him as a public enemy.

It seems to me that the doctrine which debars such a person of a remedy in our courts for such rights as are not in contravention of our declared policy, cannot be justified upon principles of justice, humanity, or sound law. The right which he seeks to enforce is not forbidden by any law or declared policy of this State. If this State and that of which he is a subject, were foreign nations under treaty of peace and friendship, the denial of such right here would, upon principles of public law, be just cause of war. Vattel, book 2, §§ 71, 350. But the States are bound together by much stronger ties than those created by treaty. They are component parts of a national confederacy; and though each is sovereign in itself, yet each is under the most .sacred obligations, arising from the nature of the compact, to protect the rights of the inhabitants of another State secured by the laws of that State, when it may be necessary, within her limits, to the extent that it is not forbidden by her constitution or laws, or plainly prejudicial to the public interest.

“ Of all compacts,” says Mr. Calhoun, speaking of the nature of the relations between the States, arising from the Constitution of the United States, that can exist between independent and sovereign communities, it is the most intimate, solemn, and sacred, whether regarded with reference to the closeness of the connection, the importance of the objects to be effected, or to the obligations imposed.” Discourse on the Constitution of the United States, 1 Calhoun’s Works, 276.

It is a capital error to suppose that the rule of international comity has any reference to, or is at all affected by, the particular domestic condition of the individual citizen or subject of the foreign State. It proceeds entirely from respect to the nation'oi which the person, whose individual right is involved, is a member; and as that State owes its citizen or subject protection in his legal rights at home, arising under her laws, the foreign State, within whose limits those rights may be involved, is bound in comity to that StatQ *283to extend to him the same protection which the State of his allegiance owes him, unless inconsistent with her declared policy. Vattel, book 2, §§ 71, 81. Nor has the State in which such right may be sought to be enforced, any right, in such case, to inquire into the question whether the status allowed to the individual by his own State be right and proper according to the views of the State where the right maybe claimed; for it is manifest that this would be such an interference with the peculiar privilege of the State, as would inevitably destroy all peaceful intercourse. To the nation alone belongs the settlement of that question, for herself and her citizens or subjects; and as it is settled by her, so is it treated, and the rights flowing therefrom respected, by all friendly nations or States. Vattel, book 2, §§ 54, 55; Wheat. International Law, 132.

These considerations are applicable, with peculiar force, to the relations subsisting between the States of this confederacy. Each State is bound to respect and protect, within her limits, the rights to which any person residing in another State of the confederacy may be entitled by the laws of that State, unless clearly interdicted by the laws and policy of the State where they may be sought to be enfcrced. This results necessarily from the nature of the union, from the remaining sovereignty of the States, and from the high duty of each State to protect the rights of her people against the violence of the other States; and if this principle is denied, this Union is the frailest and most imperfect of human fabrics.

If the light of an inhabitant of one of the States of the confederacy, such as the appellee in this case, is to be taken, as it appears it must be, not to lie within the express guarantees of the Constitution of the United States; yet such a person, being a “ subject” or an inhabitant” of the State of his residence, owing obedience to that State and entitled to her protection, has the privilege, in virtue of the right of his State, founded on principles of international comity, to assert the right to which he was entitled by the laws of his own State, and which is not interdicted by the laws and policy of the State where the right may be asserted. The 9th and 10 th amendments to the Constitution of the United States reserve to the people of the several States the rights and powers not enumerated in that instrument, and delegated to the confederacy, nor prohibited to the States; and the right of an inhabitant oy *284subject of any State, not enumerated, remains as a sovereign power reserved to the State, and to be exercised by those entitled to her protection according to the principles applicable to the relations of independent nations. It is a casus non foederis, and' is to be governed by the principles of public law.

Then what is the nature of the right under consideration? It „stands as though a subject of a foreign sovereign State was deprived of his legal right here by a citizen of this State; and according to the rule of international comity existing between sovereign States, between which friendly relations subsist, he would be entitled to assert his right here ; and in case of a denial of justice, his sovereign would be justified in taking coercive measures, either belligerent or otherwise, to protect his right.

But by the 10th section of Article 1 of the Constitution of the United States, the States are prohibited from engaging in war, or from issuing letters of marque and reprisal; and it would be repugnant to the very genius of the Union established by the Constitution, that one State should engage in war against another State of the confederacy for the protection of her rights or those of her people. Such a state of things could not consist with the Union, and would plainly be a subversion' of it. What, then, is the remedy or.means of redress of a person resident in one State, and having property -or rights by the laws of that State, of which he is deprived by a citizen of another State, such person not being a “citizen” of'the State of his residence, within the meaning of that term in the Constitution of the United States, but being an inhabitant of that State and under the pi’otection of her laws?. To deprive him of his property or right which he'might hold'or enjoy by the law of the State of his residence, would be clearly wrong.- He is recognized by the State of his residence as a person entitled to protection in his property and rights; and if, as an'inhabitant of such State, he is riot entitled' to redress in the courts of the State in which the wrong may be done' him, there is then no remedy to a certain class of the people of a State for injuries done to their persons, property, or rights by a citizen of another State. They are debarred of all remedy in the courts of such State; and the State of their residerice, which owes them protection, is deprived, by the Constitution of the ..United States, of that-power which independent nations have, by coercive measures, to redress the wrongs *285of their citizens or subjects committed by those of another State. Consequently, according to the doctrine here asserted by the majority of the court, a portion of the people of one of the States of this confederacy are without remedy as individuals to redress a wrong, or to enforce a legal right in a co-State of the Union; and the States of their residence are, by the very terms and spirit of the Constitution, deprived of the power to redress their wrongs, and extend to them the protection which they owe them; and it follows, that the inhabitant of one of the States of this Union has less protection in his right, and less means of redress of a wrong against a citizen of another of the States, than the subject of Great Britain, France, or Russia would have, either directly or through the instrumentality of his sovereign, against a citizen of one of these States.

A doctrine leading to such a 'result cannot be maintained ; yet such is the consequence, if the views of the majority of the court, as to the status and legal rights of free persons of color of the co-States of this confederacy, be correct.

It appears to me that such a theory is alike subversive of the sound doctrine of the reserved rights of the States, and ’of the reciprocal duties and obligations which subsist between the States from the very nature of the compact. It renders the Union arising from the compact less than the mere obligation of a treaty of peace and friendship between foreign nations, and deprives a portion of the people of one State of rights as against the citizens of another State, which subjects of foreign States may enjoy and enforce against the same State. It renders that which was designed “ to form a more perfect union, establish justice, and insure domestic tranquillity” between the States, the instrument of strife, injustice, and dissension. It "proves the union formed by the Constitution to be a short-sighted and miserable failure.

It is said that the violation by the non-slaveholding States, of the constitutional rights of the Southern States, in harboring our fugitive slaves and in furnishing' them protection against the claims of their owners, deprives them of all claim to international comity in reference to the rights of their free negroes who may seek to assert rights in our courts.

But this sacred duty, — to respect and enforce the rights of residents of other States, secured to them by the laws of those States,— *286can never be destroyed, whilst the confederacy continues, by the fact that the State under which the right is,claimed, has been recreant to her obligations to the compact which binds the States together. If their courts of justice have been prostituted to the purposes of fanaticism and lawlessness, that is no reason why we should descend from our elevated position, which should be superior to such influences, follow their unworthy example, and make this court the medium of propagating our political theories upon the same subject. Whilst the confederacy continues, we cannot justify ourselves as a State in violating its spirit and principles, because other States have, in some respects, been false to their duties and obligations. It may justify us in dissolving the compact, but not in violating our obligations under it whilst it continues.

Under the decisions of this court, free persons of color of other States are entitled to sue in our courts, not as “ citizens,” in the sense of the term in the Constitution of the United States; but as “subjects” or “inhabitants” of the State in which they reside, except so far as such right comes within the prohibition of our positive law or declared policy; and this under the rule of comity above stated. Shaw v. Brown, and Leiper v. Hoffman,

But this court has gone further, and recognized the right of suit in our courts in a free negro of this State, — a class of persons coming fully within the alleged policy denying all rights to the free negro here, except such as are expressly granted.

In Benoit v. Brill, 7 S. & M. 32, Benoit, a free man of color,— to whom the legislature had relinquished the claim of the State, by escheat, to the property of his natural father, Barnard Benoit, deceased, — filed his petition for distribution of his father’s estate. The administrator answered, denying that he' was a free man of color, and alleging that he was a slave, and the property of the estate. The court held that he was a free person of color, and his petition was sustained. . It must be taken that he was legally in this State, yet no power is conferred upon him to sue, and according to the doctrine of the majority of the court, a free negro, either here or elsewhere, is entitled to no such right, unless positively granted.

The rule to be deduced from the case is, that free negroes must be embraced within the general provisions of our Constitution and statutes, recognizing rights in persons, unless excepted, or excluded *287by clear implication; and that free negroes who are permitted to reside here have such rights and protection under our laws. Otherwise the strange spectacle would be presented of a class of persons permitted by law to reside in this State, but incapable of carrying on any business requiring dealings with our citizens, in order to their support, or of acquiring any property, but subject to be robbed at the pleasure of any plunderer, without remedy for its recovery; thus authorizing their residence here, but virtually depriving them of the means of support, and forcing them to subsist by plunder and crime. A doctrine leading to such results cannot be sound; and it appears to me contrary to the plain scope of our policy in permitting them to become free here and to remain here, and to the spirit of our statutes and constitutional provisions. For the statute above cited plainly gives them the right to sue for their freedom under the designation of “persons,” and the Constitution extends to all “ persons” the right of suit and of protection, in their persons and property, by due course of law.

The fundamental and controlling idea upon which property in slaves rests is, the right of absolute disposition; and this is paramount to any question as to how, or in whose behalf, the right shall be exercised. That right, so far as it refers to the disposition of the person of the slave, is unlimited, except as it is restricted by regulations of positive law. The restrictive policy, as declared by this State, is limited to emancipation of slaves in this State, to take effect here or elsewhere. But it does not extend to removal out of this State and emancipation there, and could not, for want of power to carry out any such policy. It would be contrary to all reason and principle for us to attempt to establish any law or policy prohibiting the owner in this State from removing his slave to England or India, and manumitting him there to reside there; and for the same reason, we have none interdicting the removal to Ohio for manumission and residence there. Our abstract opinions are, that such a course is impolitic; but such opinions have not been established as a -policy. Our policy, as a State, has no reference whatever to free negroes out of the State, except to prevent them from coming to this State and residing here. It is based upon the same principle as all our domestic policy; having reference to our own internal welfare and protection, and to the promotion of the mo*288rality and happiness of society. The same policy prohibits the importation of pauper infants, lunatics, vagrants, or aliens, into this State, and also subjects some of those persons to penalties; yet it would scarcely be-said that, if persons of that character were residents of other States, they would not be entitled to sue in our courts for legal rights here. So our domestic policy has been strongly against banking in this State ; yet no one would contend that a foreign bank might not sue in this State upon any legal right acquired in another State. These things, though contrary to a policy of a domestic character, contemplated by our laws, are not within their prohibition, because our laws have reference solely to the prevention of the mischiefs within this State.

Thus we perceive the error and the danger of taking a reason upon which a policy, as declared by statute, is supposed to be founded ; which supposition is necessarily uncertain and problematical, and establishing it by judicial sanction, as the policy of the State, — a principle which would give to the judiciary unlimited legislative power.

Considering, as I do, the right of the appellee claimed in the bill as a firmly settled question in this court, and dissenting widely from the opinion of the majority of the court, in announcing views as rules-of law which I do not consider to fall within the province of this court, I have felt it my duty thus to state the reasons for my dissent.

A reargument was asked for, but refused.