OK, I lied. Let's clear out a little more underbrush first.
Three Judges declined to join the majority opinions. Two of the three issued brief (roughly 150 words each) opinions that are legally insignificant but nonetheless worthy of attention on the theory that they presumbaly reflect views held by a number of "conservative" New Yorkers who were more concerned about sectional relations than the immorality of slavery.
The opinions are startlingly similar. Both Chief Judge George F. Comstock and Judge Samuel Lee Selden began by stating that attention to "other causes" or "other duties" had prevented them from giving the case the "attention" or "careful examination" it deserved. Nonetheless, both suggested that they were concerned that the majority decision threatened interstate relations.
Chief Judge Comstock's remarks are, for some reason, set forth in the third person. He opined
"that the legislation of this State, on which the question in the case depends, is directly opposed to the rules of comity and justice which ought to regulate intercourse between the States of this Union; and he was not prepared to hold that such legislation does not violate obligations imposed on all the States by the Federal Constitution."
He therefore "dissent[ed] from the judgment."
Judge Selden technically seems to have abstained, but expressed virtually identical concerns:
"I . . . am not prepared, therefore, definitely to determine whether the act of 1841 is or is not in conflict with any express provision of the United States Constitution. But however this may be, I cannot but regard it as a gross violation of those principles of justice and comity which should at all times pervade our inter-state legislation, as well as wholly inconsistent with the general spirit of our national compact. While, therefore, I am not prepared at this time to give such reasons as would justify me in holding the law to be void, I am equally unprepared to concur in the conclusion to which the majority of my associates have arrived."
20 N.Y. at 644.
One striking thing about both opinions is the use of the word "justice" together with the word "comity." The invocation of the doctrine of comity -- voluntary deference by one jurisdiction to the laws or customs of another jurisdiction -- is understandable. The invocation of "justice" is less so. Nonetheless, both Judges apparently felt that it would be "unjust" for New York not to take the laws and customs of Virginia into account.
The other thing that strikes me is that both went to the trouble of expressing their disagreement, or at least uneasiness in the case of Judge Selden, with the majority holding. Having pleaded inattention, presumably they could have simply abstained without writing anything. I infer that both were seriously worried about the impact of the decision and at least wanted to send the message that some New Yorkers were sympathetic to Virginia's position. If so, perhaps they achieved their purpose. According to the Valley of the Shadow Project, the May 1, 1860 issue of the Staunton Spectator specifically reported that "[t]hree of the Judges--Comstock, Seden [sic] and Clark [sic]--dissent from the judgement pronounced in this case."
Three Judges declined to join the majority opinions. Two of the three issued brief (roughly 150 words each) opinions that are legally insignificant but nonetheless worthy of attention on the theory that they presumbaly reflect views held by a number of "conservative" New Yorkers who were more concerned about sectional relations than the immorality of slavery.
The opinions are startlingly similar. Both Chief Judge George F. Comstock and Judge Samuel Lee Selden began by stating that attention to "other causes" or "other duties" had prevented them from giving the case the "attention" or "careful examination" it deserved. Nonetheless, both suggested that they were concerned that the majority decision threatened interstate relations.
Chief Judge Comstock's remarks are, for some reason, set forth in the third person. He opined
"that the legislation of this State, on which the question in the case depends, is directly opposed to the rules of comity and justice which ought to regulate intercourse between the States of this Union; and he was not prepared to hold that such legislation does not violate obligations imposed on all the States by the Federal Constitution."
He therefore "dissent[ed] from the judgment."
Judge Selden technically seems to have abstained, but expressed virtually identical concerns:
"I . . . am not prepared, therefore, definitely to determine whether the act of 1841 is or is not in conflict with any express provision of the United States Constitution. But however this may be, I cannot but regard it as a gross violation of those principles of justice and comity which should at all times pervade our inter-state legislation, as well as wholly inconsistent with the general spirit of our national compact. While, therefore, I am not prepared at this time to give such reasons as would justify me in holding the law to be void, I am equally unprepared to concur in the conclusion to which the majority of my associates have arrived."
20 N.Y. at 644.
One striking thing about both opinions is the use of the word "justice" together with the word "comity." The invocation of the doctrine of comity -- voluntary deference by one jurisdiction to the laws or customs of another jurisdiction -- is understandable. The invocation of "justice" is less so. Nonetheless, both Judges apparently felt that it would be "unjust" for New York not to take the laws and customs of Virginia into account.
The other thing that strikes me is that both went to the trouble of expressing their disagreement, or at least uneasiness in the case of Judge Selden, with the majority holding. Having pleaded inattention, presumably they could have simply abstained without writing anything. I infer that both were seriously worried about the impact of the decision and at least wanted to send the message that some New Yorkers were sympathetic to Virginia's position. If so, perhaps they achieved their purpose. According to the Valley of the Shadow Project, the May 1, 1860 issue of the Staunton Spectator specifically reported that "[t]hree of the Judges--Comstock, Seden [sic] and Clark [sic]--dissent from the judgement pronounced in this case."
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