Monday, December 25, 2006

Lemmon v. People VII

Next, Judge Denio turned to the first of the objections raised by Mr. Lemmon. The New York law, was is argued, violated the Privileges and Immunities Clause, which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

To address this argument, Judge Denio engaged in a long and scholarly review of the history of the Clause, starting with the inclusion of its predecessor in the Articles of Confederation. He drew the conclusion that the meaning of the Clause “is, that in a given State, every citizen of every of other State shall have the same privileges and immunities – that is, the same rights – which the citizens of that State shall possess.” 20 N.Y. at 608. On the other hand, the Clause did not grant to citizens of other States more rights than the State granted to its own citizens. “But where the laws of the several States differ, a citizen of one State asserting rights in another, must claim them according to the laws of the last mentioned State, not according to those which obtain in his own.” 20 N.Y. at 609.

In this context, Judge Denio denied that the Clause had anything “to do with the doctrine of international comity.” Under that doctrine, one State may defer to the laws of another, but it depends in part upon “the presumed assent of the legislative authority of the particular State in which the right is claimed; and an express denial of the right by that authority is decisive against the claim.” 20 N.Y. at 609. Here, there was such "an express denial" because the statutory history demonstrated that the New York legislature had already decisively spoken.

My reading of the decision leads me to conclude that Judge Denio was an extremely smart and clever lawyer. The discussion of comity together with the Privileges and Immunities Clause is at first somewhat surprising, because the doctrine of comity does not depend on the Clause. It is a flexible, quasi-equitable doctrine that typically comes into play in international relations (as Judge Denio concedes), where the Clause does not exist.

It is in the discussion immediately following that we see why the Judge has joined the two. By eliminating the flexibility of comity, which might have permitted the Virginians to keep their slaves provided they remained in New York only temporarily, Judge Denio was able to reduce the choice-of-law question implicit in the Privileges and Immunities Clause to an either-or, all-or-nothing proposition. This leads to a classic reductio ad absurdum, which the Judge paints with relish:

“If the owner of these slaves is not in like manner bound [by New York law, as New York citizens are], it is because . . . [Mrs. Lemmon] has brought with her, or sent with them [the slaves], laws of Virginia, and is entitled to have those laws enforced in the courts, notwithstanding the mandate of our own laws to the contrary. But the position of [Mrs. Lemmon] proves too much. The privileges and immunities secured to the citizens of each State by the Constitution are not limited by time, or by the purpose for which, in a particular case, they may be desired, but are permanent and absolute in their character. Hence, if [Mrs. Lemmon] can claim exemption from the operation of the statute . . . on the ground that she is a citizen of a State where slavery is allowed, and that our courts are obliged to respect the title which those laws confer, she may retain slaves here during her pleasure; and, as one of the chief attributes of property is the power to use it, and to sell or dispose of it, I do not see how she could be debarred of these rights within our jurisdiction as long as she may choose to exercise them. She could not, perhaps, sell them to a citizen of New York, who would at all events be bound by our laws, but any other citizen of a slave State – who would equally bring with him the immunities and privileges of his own State – might lawfully traffic in the slave property.”

20 N.Y. at 609-10.

Having demonstrated that the alternative would transform New York into a slave market, Judge Denio drew the obvious conclusion:

“The answer to the claim in that aspect has already been given. It is that the owner cannot lawfully do anything which our laws do not permit to be done by one of our own citizens, and as a citizen of this State cannot bring a slave within its limits except under the condition that he shall immediately become free, the owner of those slaves could not do it without involving herself in the same consequences.”

20 N.Y. at 611.

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