20 N.Y. 562, Lemmon v. People

Citation:20 N.Y. 562
Party Name:LEMMON v. PEOPLE.
Case Date:March 01, 1860
Court:New York Court of Appeals
 
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20 N.Y. 562

LEMMON

v.

PEOPLE.

New York Court of Appeal

March 1, 1860

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COUNSEL

Charles O'Conor, for the appellant.

I. Except so far as the State of New York could rightfully, and without transcending restraints imposed upon her sovereignty by the Constitution of the United States, forbid the status

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of slavery to exist within her borders in the person of an African negro, and except so far as she has, in fact, expressly or impliedly forbidden it by actual legislation, an African negro may be lawfully held in that condition in this State. 1. The ancient general or common law of this State authorized the holding of negroes as slaves therein. The judiciary never had any constitutional power to annul, repeal or set aside this law; and, consequently, it is only by force of some positive enactment of the legislative authority that one coming into our territory with slaves in his lawful possession could suffer any loss or diminution of his title to them as his property. (1.) In every known judgment, argument or opinion of court, judge or counsel relating to the subject, it is admitted in some form, that at an early period negro slavery existed under the municipal law in each one of the thirteen original States which formed this Republic, by declaring its independence in 1776, and adopting its Constitution in 1789. By what means it had its first reception and establishment in any of them as an institution sanctioned by law, may not be historically traceable; but in most, if not all of them, and certainly in New York, it was expressly recognized by statute prior to the time when the States themselves asserted their independence. (28October, 1806, Van Schaick's Laws, 69; 29 October, 1733, id., 157; Colonial Slave Act of N.Y. March 8, 1773; Jack v. Martin, 12 Wend., 328; Jackson v. Bulloch, 12 Conn., 42; id., 61; Commonwealth v. Aves, 18Pick., 208, 209; Scott v. Sandford, 19 How., 407, 408; Hargrave's Argt., point 5th, 20 State Trials, 60; Per MCLEAN, J., 16 Pet., 660; 15 id., 507.)(2.) Negro slavery never was a part of the municipal law of England, and consequently it was not imported thence by the first colonists. Nor did they adopt any system of villenage or other permanent domestic slavery of any kind which had ever existed in England or been known to or regulated by the laws or usages of that kingdom. They were a homogeneous race of the free white men; and in a society composed of such persons, the slavery of its own members, endowed by nature with mental and physical equality, must ever be repugnant to an enlightened sense of justice. of

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course, the colonists abhorred it, saw that it was not suited to their condition and left it behind them when they emigrated. (Doctor and Student Dialogue, 2 Ch., 18, 19; Wheaton v. Donaldson, 8 Pet., 659; Van Ness v. Pacard, 2 Pet., 444; 1 Kent Com., 373; Const. N.Y. art. 1, § 17; Neal v. Farmer, 9 Cobb's Geo. R., 562, 578.)(3.) As neither the political bondage nor the domestic slavery which the European by fraud and violence imposed upon his white brethren ever had a legal foothold in the territory now occupied by these States, the inflated speeches of French and British judges and orators touching the purity of the air and soil of their respective countries, whatever other purpose they may serve, are altogether irrelevant to the inquiry what was or is the law of any State in this Union on the subject of negro slavery. (French Eloq., A. D., 1738, 20State Trials, 11, note; English Eloq., A. D., 1762, 2 Eden, 117, Ld. NORTHINGTON; Id., 1765, 1 Bl. Com., 127, 124; Id., 1771, 20 State Trials, 1 Ld. MANSFIELD; Scotch Eloq., 1778, id., 6, note; Irish Eloq., 1793, Rowan's Trial, Curran; Judge MCLEAN'S criticism in Dred Scott, 19How., 535; Lord STOWELL'S criticism, 2 Hagg. Ad., 109.) (a.) The only argument against negro slavery found in the English cases at all suitable for a judicial forum rests on the historical fact that it was unknown to the English law. Mr. Hargrave, in Somerset's case, showed that white Englishmen were alone subject to the municipal slave laws of that country at any time; that negro slavery was a new institution which it required the legislative power to introduce. (20State Trials, 55; Com. v. Aves, 18 Pick., 214.) (b.) Lord HOLT and Mr. Justice POWELL were Mr. Hargrave's high authority for the proposition that whilst the common law of England recognized white English slaves or villeins and the right of property in them; yet it "took no notice of a negro. " That a white man might "be a villein in England, " but "that as soon as a negro comes into England he became free. " It was only negro liberty that the know-nothingism of English and French law established. English and French air had not its true enfranchising purity till drawn through the nostrils of a negro. White slaves had long respired it without their status being at all affected. (Smith

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v. Brown, 2 Salk., 666; 20 State Trials, 55, note.)(c.) Lord MANSFIELD said in Somerset's case, "The state of slavery is of such a nature that it is incapable of being introduced on any reason, moral or political, but only by positive law, " and negrophilism has been in raptures with him ever since. Nevertheless it was a bald inconsequential truism. It might be equally well said of any other new thing not recognized in any known existing law. (Per ASHHURST, J., 3 J. R., 63.) (4.) The judiciary never had power to annul, repeal or set aside the slave law of this State which we have shown existed with the sanction of the Legislature prior to the Revolution. (a.) Judicial tribunals in this country are a part of the government, but by the genius of our institutions, and the very words of our fundamental charters, they are restrained from any exercise of the law-making power. That governmental function is assigned to a separate department. (b.) By this strict separation of governmental powers, we have given form and permanency to a maxim of politico-legal science always acknowledged by the sages of the English law in theory, though often violated in practice. (c.) For proofs of this acknowledgment we refer to the habitual definition of judicial power--jus dare et non jus facere. Again, the wise and learned Sir JONATHAN EARDLEY WILMOT says: "Statute law and common law originally flowed from the same fountain--the Legislature.

Statute law is the will of the Legislature; the common law is nothing else but statutes worn out by time; all our law begun by consent of the Legislature; and whether it is now law by usage or by writing it is the same thing. "(Collins v. Blantern, 2 Wils., 348; 1 Kent, 472.) This is sound doctrine; but it has often been departed from in practice. (d.) In some instances the departure has been very striking. The legislative authority of Great Britain, in 1285, sought by the celebrated statute de donis to make entailed lands absolutely inalienable. As far as the plain and direct expression of its sovereign will by the supreme law-making power could have that effect, they were rendered inalienable. The judges, without a shadow of constitutional right, contrived the absurd and irrational fiction of

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a common recovery, and thereby virtually repealed the statute. (2 Bl. Com., 116, Per MANSFIELD; 1 Burr., 115, Ld. Ch. J. WILLES; Willes, 452.)The English legislature was governed by what we, with our present lights, may deem a pernicious policy, tending to restrain commerce in land, to tie it up in few hands, and to draw into operation numerous social evils. The unfettering of estates by the English judges, through the devices to which they resorted, had its origin in a wise regard for the interests of the people; but in them, it was mere trick and rank usurpation. So Lord ELDON, from his place as President of the House of Lords, at a period when constitutional law was better understood in England, in pronouncing the judgment upon the case of the Queensberry leases (1 Bligh's P. Rep., 1st series, 435, A.D. 1819), says: "The power of judges in this respect may be doubted. Upon that subject, as it applies to English law, I have formed an opinion that the judges of this age in England would not have been permitted to get rid of the statute of English entails as judges of that age did soon after the passing of the statute de donis. (38 Eng. L. and Eq., 444.) (e.) Those lawyers who have failed to perceive, as Lord ELDON did, the necessity of keeping separate the great departments of the government, whose professional pride was greater than their knowledge of constitutional jurisprudence, have frequently boasted of a tendency amongst the English juris-consults and judges to defeat what to them seemed impolitic and unjust resolutions of the legislative department. They erred. Far better that supposed mischiefs should exist for a time by the ill-advised sanction of the Legislature than that, by usurping powers not granted, the high priest of justice should defile himself and the temple in which he officiates by the sin of willfully violating the fundamental law. Error should not be combated by error, by crime, or by ingeniously conceived fraudulent devices and evasions, but by fair argument and open remonstrance addressed to those whom the Constitution has invested with the sole power of orderly and legitimate correction. An instance of this ill-considered self-gratulation may be found in the otherwise admirably written

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argument of Mr. HARGRAVE, as counsel for the negro Somerset before Lord MANSFIELD. The last sentence of that argument, vaguely to be sure, and, perhaps, somewhat covertly, commends the astuteness of the English judges in circumventing the lord under the system of English villenage, by which they gradually undermined that part of the ancient law of England. (20 Howell's State...

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