assert his authority over her, or whether she was free? The decision of Lord Stowell maintained the authority of the master, holding that the Somersett case did not decide that the removal to a non-slaveholding state worked an emancipation, but simply that the courts of England would not lend their aid to enforce his rights.'

In this case, Lord Stowell enters upon the examination of the question with great candor. He unhesitatingly affirms that African slavery not only existed in fact, but was recognized by the courts prior to the case of Somersett. He refers particularly to the judgment of Lord Chancellor Hardwicke, in 1749, sustaining the counsel he had previously given the colonists as Sir Philip Yorke, and says that this judgment was reversed by Lord Mansfield. He speaks of Lord Mansfield's decision as "a change of the law," and as law which Lord Mansfield "himself had introduced."2

§ 197. Such are the English authorities. Those prior to Somersett's case, would seem to recognize slavery as existing under the municipal law of England. The dicta of some of the Judges in the later cases go to the opposite extreme, while that of Lord Stowell sustains it in full. At the date of the former there seems to have been but little information on the peculiar questions of international law. At the date of the latter, there seems to have been much excitement and zeal on the subject of slavery and the slave-trade, which the judicial ermine could * Pages 109, 114.

12 Hagg. Adm. Rep. 94.

not exclude from the courts of justice.' About them all we may remark, that in no single case was the question made and decided as to the extent to which the comity of nations required the enforcement of the foreign law in the courts of England.

'Lord Stowell, even in a letter to Judge Story, glories in the appellation of "an abolitionist." Life and Letters of Story, vol. i, 555.

CHAPTER X.

SAME SUBJECT CONTINUED.-HOW FAR THE QUESTION IS AFFECTED BY OUR FORM OF GOVERNMENT AND CONSTITUTION.

§ 198. WE have thus examined the opinions of foreign jurists and the adjudged cases in foreign courts, to see whether their decisions controvert the correctness of those conclusions to which upon principle we arrived.' We must think that to the honest

1

Ante, § 174. Through communications in the public journals, I see the decision of a cause very lately (1856), in the highest judicial tribunal of Prussia, where the question was distinctly made and ruled as I lay down the law. Not having an authoritative report, I cannot insert it in the text. "The case was that of Dr. Ritter, a citizen of Brazil, against one Marcinello, his slave, whom he had brought to Berlin, where he told him he would simply treat him as a servant, but on his return home he should expect him to reenter on his former condition. The slave, however, left his master, and instituted a suit against him, praying that he be called upon to prove his property within a given period, or be forever debarred, &c. The local tribunal of Berlin gave judgment in favor of the slave, but the Court of Appeals reversed this judgment, and the Supreme Court of Justice confirmed the judgment of the Court of Appeals. Mr. Grund also adds that, in the written reasons for this decision, which are always furnished by the Judges in Germany, the Court held that Dr. Ritter had good cause to claim Marcinello as his slave; it being proved that the relation of master and slave subsisted, and still

candid mind those conclusions remain, if not supported, at least uncontradicted, by the authorities.

§ 199. If these are the principles upon which the slaveholder's rights would be adjudicated in the courts of foreign independent nations, should the same principles determine the relative rights of master and slave within the States of the Union? And is the obligation to observe this comity greater or less among the States of this Union, than among totally independent States? These questions demand now our consideration.

§ 200. The very name "Comitas inter communitates" exhibits the foundation of these principles. It is comity, courtesy, founded upon mutual respect, and promotive of mutual interest, the offspring of commerce and enlightenment, the handmaid of justice and peace. Surely it does not require an argument to prove that there is nothing in the nature of the union of these States, which weakens those bonds that bind together even independent States.

§ 201. On the contrary, the obligation to re

subsists lawfully in Brazil, the domicile of both the plaintiff and defendant; that by the plaintiff's own confession, defendant had bought him for a certain sum of money; that it was proved by a competent witness, a merchant by the name of Ree, that Marcinello, while at Rio Janeiro, lived in the defendant's house as a slave, using the language and wearing the badge of servitude (going barefooted), by which slaves in Brazil are recognized; and, finally, because Marcinello's name occurs in the passport as a slave, belonging to the defendant. The relations between master and servant are regulated by the laws of the country where both are domiciliated, and a promise on the part of the master, within a certain limited time and space not to use his rights over his slave to the fullest extent, is not tantamount to their relinquishment.”

spect and observe this comity, is greater upon the Courts of the States of this Union, than upon the Courts of independent States. The very Union itself was framed to establish justice, insure domestic tranquillity, and promote the general welfare of the people of these United States. If, then, we mete out to each other no farther privileges, no greater courtesy than if no bond of union existed, "what thanks have we? Do not the publicans the same?" Wherein is this Union made "more perfect," if it leaves the courts of the several States regulating the rights of the sister States, by the scanty courtesy of foreign tribunals? So long as this Union exists, there is but one body, though many members. The States are not foreign to each other, for every purpose; and more especially in the application of those principles of comity, which are calculated so much to "insure domestic tranquillity." The language of Judge Lockwood' is as praiseworthy for its patriotism, as it is remarkable for its clear legal conclusions. "The relations we sustain to our sister States, also, furnish strong reasons why the law of comity should be expanded, so as to meet the exigencies arising out of that relation. What, then, are the relations we sustain to other States, which ought to affect our public policy towards them? They are not foreign States. We are bound up with them by the Constitution of the United States into a Union, upon the preservation of which no one can doubt that our own peace and welfare greatly depend. Other nations may cherish

1 Willard v. The People, 4 Scammon, 475.