Thursday, December 28, 2006

Lemmon v. People XI

Having established his foundation, Judge Clerke began building on it by asking a rhetorical question:

"Is it consistent with this purpose of perfect union, and perfect and unrestricted intercourse, that property which the citizen of one State brings into another State, for the purpose of passing through it to a State where he intends to take up his residence, shall be confiscated in the State through which he is passing, or shall be declared to be no property, and liberated from his control?"

20 N.Y. at 636.

In order to answer the question, Judge Clerke first turned to the "the law of nations" for support. Under that law, he asserted, "the citizens of one government have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property." Moreover, foreign nations yield this privilege to each other "without any express compact. It is a principle of the unwritten law of nations." Id.

As you may guess, Judge Clerke then concluded that, if sovereign nations, unbound by compact, granted this privilege to one another, a fortiori "this principle is much more imperative on the several States." "For it can be clearly deduced, as we have seen, from the compact on which their union is based." Id.

Judge Clerke has one more hurdle to pass: are slaves "property," or is that term limited to "merchandise or things?" And who defines the term? We will deal with these issues in our next installment.

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