Tuesday, February 27, 2007

Scott v. Emerson III: "The Act is the Thing"

The majority decision was written by Justice William Scott. After describing the facts, Justice Scott began by identifying the basis for the court's decisions "to exact the forfeiture of emancipation." It was not "a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist." Rather, the decisions presumed "it is the duty of the courts of this State to carry into effect the Constitution and laws of other States and territories, regardless of the rights, the policy or the institutions of the people of this State." "The old cases say, the intent is nothing, the act is the thing."

Justice Scott immediately questioned whether this duty existed. Although the States were "associated for some purposes of government," they "have always been regarded as foreign to each other" "in relation to their municipal concerns." In "all . . . matters of internal police," such as the laws of estates, States generally follow their own laws and not those of other States or federal laws "enacted for the mere purpose of governing a territory."

In short, there was no obligation to observe or enforce the laws of other States:
Every State has the right of determining how far, in a spirit of comity, it will respect the laws of other States. Those laws have no intrinsic right to be enforced beyond the limits of the State for which they were enacted. The respect allowed them will depend altogether on their conformity to the policy of our institutions. No State is bound to carry into effect enactments conceived in a spirit hostile to that which pervades her own laws.

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