Lemmon v. People ex rel. Napoleon

By the Court, Mitchell, P. J.

The act of the legislature of this state, passed in 1817, and re-enacted in parts in 1830, (1 R. S. 656,) declaring that “no person held as a slave shall be imported, introduced, or brought into this state on any pretense whatever, except in the cases thereinafter specified,” and that “every such person shall be free,” applies to this case. The slaves in this case were brought from Virginia into this state, and remained here some short time: and although they were only brought here with a view to carry them from this state to Texas, they were (after the exceptions in that act were repealed by a subsequent act) within the prohibitions of that act; and are free if those acts be constitutional. The addition made to the act, in the revised statutes of 1830, seems to have been intended to place this beyond doubt, (see §16, p. 559;) it is, “Every person born within this state, whether white or colored, is free : every person who shall hereafter be born within this state, shall be free : and every person brought into this state as a slave, except as authorized by this title, shaE be free.” One of the exceptions mentioned in that title allowed a person, not an inhabitant of this state, traveling to, or from, or passing through, this state, to bring his slave here and to take him away again; provided, that if the slave continued here more than nine months, he should be free. Those exceptions are repealed by the act of 1841.

Comity does not require any state to extend any greater privEeges to the citizens of another state than it grants to its own. As this state does not aEow its own citizens to bring a slave here even, in transitu, and to hold him as a slave for any portion of time, it cannot be expected to allow the citizens of another state to do so.

Subdivision 1 of section 2 of article 4 of the constitution of the United States makes this measure of comity a right, but with the limitation above stated: it gives to the citizens of a sister state only the same privileges and immunities, in our state, which our laws give to our own citizens. It declares, that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states/' Subdivision 3 of that section is confined to the case of a person held to service or labor escaping from one state into another. It does not extend to the case of a person voluntarily brought by his master into another state for any period of time: it cannot bjr any rule of construction be extended to such a case. It is, “no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor,” &c.

The clause of the constitution giving to congress power “to regulate commerce with foreign nations and among the several states, and with the indian tribes,” confers no power on congress to declare the status which any person shall sustain, while in any state of the union. This power belonged originally to each state, by virtue of it sovereign and independent character, and has never been surrendered. It has not been conferred on congress, or forbidden to the states, (unless in some provisions in favor of personal rights,) and is therefore retained by each state, and may be exercised as well in relation to persons in transitu, as in relation to those remaining in the state.

The power to regulate commerce may be exercised over persons as passengers, only while on the ocean and until they come under state jurisdiction. It ceases when the voyage ends,, and then the state laws control.

This power to regulate commerce, it has been expressly declared by the supreme court of the United States, did not prevent the state of Mississippi from prohibiting the importation of slaves into that state for the purposes of sale. The same court has held that goods when imported can (notwithstanding any state law) be sold by the importer in the original packages. It follows that the power to regulate commerce, confers on the United States some check on the state legislation as to goods or merchandise, after it is brought into the state, but none as to persons, after they arrive within such state.

[New York General Term, December 30, 1857

If this could be regarded, in the case of the slave-holding. states, as a police regulation, it may also be so regarded as to the free states. They consider (as the legislation of this state for many years has shown) that the holding of slaves in this state, for any purpose, is as injurious to our condition and to the public peace, as it is opposed to the sentiment of the people of this state.

The judgment or order below should be affirmed, with costs.

lifiinlifill TínnoctuiH. Peabody, Justices.