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The language of Judge Curtis, in the statement of general principles and of the conclusions afforded by their application to the facts of this case, is more in harmony with the views taken in the elementary portion of this work, than are the expressions employed by the other members of the court. The

accordance with the settled rules of international law. And legal tribunals are bound to act on this presumption. It may be assumed that the motive of the state in allowing such operation to foreign laws is what has been termed comity. But, as has justly been said (per Chief Justice Taney, 13 Pet., 589), it is the comity of the state, not of the court. The judges have nothing to do with the motive of the state. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will to depart from a rule of international law has not been manifested by the state, they are bound to assume that its will is to give effect to it. Undoubtedly, every sovereign state may refuse to recognize a change, wrought by the law of a foreign state, on the status of a person, while within such foreign state, even in cases where the rules of international law require that recognition. Its will to refuse such recognition may be manifested by what we term statute law, or by the customary law of the state. It is within the province of its judicial tribunals to inquire and adjudge whether it appears, from the statute or customary law of the state, to be the will of the state to refuse to recognize such changes of status by force of foreign law as the rules of the law of nations require to be recognized. But, in my opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view it may take of the exterior political relations between the state and one or more foreign states, or any impressions it may have that a change of foreign opinion and action on the subject of slavery may afford a reason why the state should change its own action. To understand and give just effect to such considerations, and to change the action of the state in consequence of them, are functions of diplomatists and legislators, not of judges.

"The inquiry to be made on this part of the case is, therefore, whether the State of Missouri has, by its statute, or its customary law, manifested its will to displace any rule of international law, applicable to a change of the status of a slave, by foreign law. I have not heard it suggested that there was any statute of the State of Missouri bearing on this question. The customary law of Missouri is the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And the common law, as Blackstone says (4 Com., 67), adopts, in its full extent, the law of nations, and holds it to be a part of the law of the land. I know of no sufficient warrant for declaring that any rule of international law, concerning the recognition, in that State, of a change of status, wrought by an extra-territorial law, has been displaced or varied by the will of the State of Missouri. I proceed then to inquire what the rules of international law prescribe concerning the change of status of the plaintiff wrought by the law of the Territory of Wisconsin.

"It is generally agreed by writers upon international law, and the rule has been judicially applied in a great number of cases, that wherever any question may arise concerning the status of a person, it must be determined according to that law which has next previously rightfully operated on and fixed that status. And, further, that the laws of a country do not rightfully operate upon and fix the status of persons who are within its limits in itinere, or who are abiding there for definite temporary purposes, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, operate only on the inhabitants of the country. Not that it is or can be denied that each independent nation may, if it thinks fit, apply them to all persons within their limits. But when this is done, not in conformity with the principles of international law, other states are not understood to be willing to recognize or allow effect to such applications of personal statutes."

On p. 601 of the Report, Judge Curtis says: "To avoid misapprehension on this

portions of the Opinion particularly referred to are given in the note.

977. The question whether the national judiciary must accept the decision of the State court, on the facts in the particular case, as the authoritative exposition of the law of the State

important and difficult subject, I will state, distinctly, the conclusions at which I have arrived. They are

"First. The rules of international law respecting the emancipation of slaves, by the rightful operation of the laws of another State or country upon the status of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State.

"Second. The laws of the United States, constitutionally enacted, which operated directly on and changed the status of a slave coming into the Territory of Wisconsin with his master, who went thither to reside for an indefinite length of time, in the performance of his duties as an officer of the United States, had a rightful operation on the status of the slave, and it is in conformity with the rules of international law that this change of status should be recognized everywhere. "Third. The laws of the United States, in operation in the Territory of Wiscon sin at the time of the plaintiff's residence there, did act directly on the status of the plaintiff, and change his status to that of a free man.

"Fourth. The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract, a marriage in that Territory, valid under its laws; and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State, or of some right de rived from them; which cannot be shown in this case, because the master consented to it.

"Fifth. That the consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emancipation. And the law does not enable Dr. Emerson, or any one claiming under him, to assert a title to the married persons as slaves, and thus destroy the obligation of the contract of marriage, and bastardize their issue, and reduce them to slavery.

"But it is insisted that the Supreme Court of Missouri has settled this case by its decision in Scott v. Emerson (15 Missouri Reports, 576); and that this decision is in conformity with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr. Emerson never became domiciled in the Territory, and so its laws could not rightfully operate on him and his slave; and the facts that he went there to reside indefinitely, as an officer of the United States, and that the plaintiff was lawfully married there, with Dr. Emerson's consent, were left out of view, the decision would find support in other cases, and I might not be prepared to deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not questioned in that decision; and it is placed on a broad denial of the operation, in Missouri, of the law of any foreign State or country upon the sta'us of a slave, going with his master from Missouri into such foreign State or country, even though they went thither to become, and actually became, permanent inhabitants of such foreign State or country, the laws whereof acted directly on the status of the slave, and changed his status to that of a freeman,

"To the correctness of such a decision I cannot assent. In my judgment, the opinion of the majority of the court in that case is in conflict with its previous decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental principles of private international law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said:" &c.

affecting the rights of the parties, has been already noticed, ante, Vol. I., p. 490, n. 2. If the case is one of those in which the rights and obligations of the parties, though ascertained according to the State law, are maintained under the quasiinternational law which derives its authority from the Constitution of the United States, the national judiciary must ascertain the State law without reference to the judgment of the State court on the same facts. Otherwise, though that judgment would be appealable to the Supreme Court of the United States as a case arising under the Constitution of the United States, the appeal would be nugatory.

But the case may be one in which the rights and obligations of the parties are not maintained by any provision in the Constitution, though coming within the judicial power of the United States as a case between certain persons. In such a case it would seem that the decision of the State court as to the State law in the particular case must be conclusive. The case of Dred Scott v..Sandford, if within the judicial power of the United States, was one of this character, having been brought in the Circuit Court by Scott as a citizen of Missouri against Sandford as a citizen of New York, and not as a case arising under the Constitution and laws of the United States.

The opinion of Judges Taney and Nelson, as to the force of the decision of the Missouri court as the exposition of the law of Missouri, may be sustained by this distinction.

§ 978. A variety of circumstances may be conceived in which the determination of the rights and obligations of private persons incident to conditions of freedom and its contraries would present other questions under that branch of the domestic international private law of the United States which is considered in this chapter. These for the most part might be classed under the law of contract and testamentary dispositions. No questions of this class have hitherto excited particular attention."

In connection with this section, see ante, in the close of Ch. X., §§ 323, 327. VOL. II.-50

CHAPTER XXXII.

THE FOREIGN INTERNATIONAL PRIVATE LAW OF THE UNITED STATES. OF NATURALIZATION. OF STATUS OF FOREIGN ALIENS. OF THE IMPORTATION OF SLAVES, AS TRADE AND AS CRIME. OF THE DEMAND AND EXTRADITION OF SLAVES AND CRIMINALS UNDER THE GENERAL INTERNATIONAL LAW.

§ 979. After considering conditions of freedom and its contraries as topics of the domestic international law, it remains to consider such conditions as they may be affected by the foreign international law of the United States which applies to persons distinguished as foreign aliens.' Under this branch of the general subject only a few principal objects of inquiry can here be briefly alluded to.

§ 980. On general principles, the law of the colonies applying to foreign aliens continued in the new States after the Revolution, modified only by the political change whereby the subjects of Great Britain became aliens in respect to the United States. The Constitution of the United States contains no provisions which directly determine any relations of foreign aliens. The rights and obligations incident to the status or personal condition of such persons depend upon the powers held by the States, except as those granted to the several departments of the national Government become a source of law affecting such persons.

981. The question as to the extent of the power "to establish a uniform rule of naturalization," has already been noticed. The existing Acts of Congress mention only "aliens being free white persons" as those who may acquire citizenship

1

Ante, SS 384, 387, 599, and, generally, Chapters XIII. and XX. 2 Ante, §§ 75, 330, 415, 434.

under them. The question, whether Congress may or may not naturalize others, may depend upon the degree of privilege which Congress can confer under this power.'

§ 982. If the status of the foreign alien can be affected by any other legal rule resting on the powers held by that Government, it must be through the grant of powers in reference to the external relations of the United States with foreign countries and their inhabitants. These relations may, in a measure, be distinguishable as those of war and those of peace. The powers of government incident to the first of these have no proper legal connection with the personal condition of private persons.❜

§ 983. The power "to regulate commerce with foreign na

1 Ante, §§ 389-391, 627-630.

2 In the existing civil crisis much is said of a "war power," in the exercise of which the slaves, in the States whose inhabitants are in armed opposition to the national Government, may be emancipated, at the discretion of those who, in those States, may have the supreme command of the national military force. Mr. J. Q. Adams, in a speech in the House of Representatives, April 14, 15, 1842, is said to have stated the existence of the power as a recognized doctrine of public law. In the event of any declaration of emancipation, in the exercise of such a power, and of an ensuing practical emancipation while the parties whose rights and obligations are to be affected by it are within the actual control of the military force from which the declaration proceeds, the question of the legal operation of such declaration may be supposed to arise at some time or other after the withdrawal of the military force, and whenever those rights and obligations shall be the subject of suits in the civil courts. It seems to be assumed, by those who assert the existence of the power and advocate its exercise in the revolting States, that the status of the slaves so emancipated will have been legally changed, as by ordinary emancipation by act of the owner, or by State legislation. This being supposed, and that the civil courts will, in the ordinary course of judicial decision, recognize the change of personal condition, the question occurs whether, by the same declaration of emancipation, a change in the location of power over the status of those thus emancipated will have occurred, so that the power to determine their condition as bond or free in the future will no longer be vested in the several State which they may inhabit, but pass to some other political person-the national Government, or some department or officer thereof, it may be assumed. In this case, the written Constitution will have ceased to indicate the line between the powers granted to the Government of the United States and those "reserved" to the States; and the further inquiry naturally follows, whether those thus emancipated will be the only persons whose personal condition will have been removed from the control of the State,-the personal condition of all others, of whatever color, being still subject to the State power,-or whether the entire power over status of persons will, in some of the States, have become one of the powers held by the national Government, and whether the change will affect the powers of all the States equally. The assertion of power to effect a permanent emancipation, whether it be claimed for a commander-in-chief, for Congress, or for the national Government as a whole, involves the inquiry-Will a new distribution of the powers of sovereignty in the hands of the people of the United States by revolutionary change now take place? By sec. 4 of the Act of Aug. 6, 1861, An Act

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