Lemmon v. People XVII: The Passenger Cases

Chief Justice Taney's dissent in the Passenger Cases, 48 U.S. 283, 492 (1849), is famous for containing the first expression of what later became known the "right to travel." It strikes me, however, that he might have been able to use the thrust of his comments to support an argument that slaveholders had a right to travel through free states with their slaves.

The Passenger Cases involved statutes by the states of New York and Massachusetts by which ship captains were charged a fee for each passenger they brought into the state. The principal question was whether these statutes violated the Commerce Clause.

The Taney court decisions on the Commerce Clause were usually virtually incoherent, and the Passenger Cases were no exception. By a 5-4 vote, the Court held the statutes invalid. At least three of the five judges in the majority stated the statutes violated the Commerce Clause. The two others apparently rested their decisions on other grounds.

Likewise, the dissenters cited a number of different, and sometimes contradictory, reasons for their conclusions. Among other things, they argued that the statutes were the legitimate exercise of police powers retained by the states to protect their citizens against disease and pauperism; and that the transportation of passengers fell outside the scope of the Commerce Clause altogether.

The sections of the statutes at issue in the cases concerned the imposition of fees on captions bring aliens into the states from abroad. However, the statutes contained corresponding sections imposing fees for interstate travel by American citizens coming from ports in other states. Although interstate travel was not before the Court, Chief Justice Taney reached out to consider it. In his view, the Commerce Clause did not bar states from imposing the fees for the importation of aliens from foreign ports. However, the Constitution would bar imposing fees for the interstate transportation of American citizens.

Why? Well, it's not clear. Taney did not cite any particular constitutional provision. Rather, he cited the nature of the Union. Judge for yourself. Here is his discussion in its entirety:

In speaking of the taxing power in this case, I must, however, be understood as speaking of it as it is presented in the record,-that is to say, as the case of passengers from a foreign port. The provisions contained in that law relating to American citizens who are passengers from the ports of other States is a different question, and involves very different considerations. It is not now before us; yet, in order to avoid misunderstanding, it is proper to say, that, in my opinion, it cannot be maintained. Living as we do under a common government, charged with the great concerns of the whole Union, every citizen of the United States, from the most remote States or Territories, is entitled to free access, not only to the principal departments established at Washington, but also to its judicial tribunals and public offices in every State and Territory of the Union. And the various provisions in the Constitution of the United States-such, for example, as the right to sue in a federal court sitting in another State, the right to pursue and reclaim one who has escaped from service, the equal privileges and immunities secured to citizens of other States, and the provision that vessels bound to or from one State to another shall not be obliged to enter and clear or pay duties-all prove that it intended to secure the freest intercourse between the citizens of the different States. For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.

Passenger Cases, 48 U.S. at 492.

Judge Thomas W. Clerke of the New York Court of Appeals did not cite the Passenger Cases in his dissent in Lemmon v. People, but I now wonder whether he had read Chief Justice Taney's passage and was inspired by it. I have discussed Judge Clerke's dissent at length in earlier posts (you can find them by clicking the "Thomas W. Clerke" tag), but here's a taste:

It was essential to this grand design [of the Constitution] that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different States, as between the inhabitants and citizens of the same State.

. . .

[W]e say, that the citizens of any one State 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.

Lemmon, 20 N.Y. at 634, 636.

Frustratingly, I can't find a picture of Judge Clerke. The picture above is of Judge William B. Wright, who wrote one of the majority opinions in Lemmon.

Lemmon v. People XII

It's been a while. As you may recall, dissenting New York Court of Appeals Judge Thomas W. Clerke had concluded that, pursuant to the Constitution, "the citizens of any one State 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."

He then turned to the question whether slaves were "property" under the rule he laid out. He answered in the affirmative, essentially arguing that the Constitution recognized slaves as property:

"[C]an any one State insist, under the federal compact, in reference to the rights of the citizens of any other State, that there is no such thing as the right of such citizens, in their own States, to the service and labor of any person. This is property; and whether the person is held to service and labor for a limited period, or for life, it matters not; it is still property -- recognized as an existing institution by the people who framed the present Constitution . . .."

Judge Clerke conceded that slavery was "a local institution," but found this no impediment to his conclusion:

"And what was the result of those convictions and deliberations [at the Constitutional Convention]? Undoubtedly, that while slavery should be deemed a local institution, depending upon the power of each State to determine what persons should share in the civil and political rights of the community the right is fully recognized in the Constitution, that any of the States may continue and allow the right of property in the labor and service of slaves."

Finally, Judge Clerke rejected the suggestion that the slaveholders' right was "founded merely on comity." The right to passage might be granted voluntarily under international law, but the Consititution cemented the right:

"The right yielded by what is termed comity under the law of nations, ripens, in necessary accordance with the declared purpose and tenor of the Constitution of the United States, into a conventional obligation, essential to its contemplated and thorough operation as an instrument of federative and national government."

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.

Lemmon v. People X

Judge Wright, ironically, voted in favor of freeing the eight slaves by insisting that the Constitution strictly limited the powers of the federal government to those specifically enumerated. Conversely, Judge Clerke voted to reverse by looking to the broad purposes of the Constitution as he perceived them rather than focusing on specific clauses or powers. In many ways, Judge Clerke's opinion is a remarkably "loose" and “liberal” one.

Judge Clerke agreed that the New York statute applied to the situation and, but for constitutional considerations, required freeing the slaves. “But it is a question of much greater difficulty, whether the Legislature had the constitutional power to do so.”

The Constitution, Judge Clerke asserted, “not only establishes a confederacy of States, but also, in regard to its most material functions, it gives this confederacy the character of a homogeneous national government.” The framers “evidently designed to incorporate this people into one nation, not only in its character as a member of the great family of nations, but also in the internal, moral, social and political effect of the Union upon the people themselves.”

From this, Judge Clerke in effect derived what we would today call the right to travel:

“It was essential to this grand design that there should be as free and as uninterrupted an intercommunication between the inhabitants and citizens of the different states, as between the inhabitants and citizens of the same State.”

20 N.Y. at 634.

In the remainder of the paragraph, Judge Clerke repeatedly invoked the “more perfect union” language of the Preamble and listed many of the provisions of the Constitution (including the Interstate Commerce Clause and the Privileges and Immunities Clause) that were designed “better to secure and perpetuate mutual friendship and intercourse among the people of the different States.” Based on this review, he concluded as follows:

“Most assuredly, the people who adopted the present Constitution did not intend that the intercourse between the people of the different States should be more limited or restricted than the States, in their corporate capacity, provided in the Articles of Confederation. On the contrary, they contemplated, as we have seen, a more perfect union, and a more perfect and unrestricted intercourse; and they amply secured it by the provisions to which I have referred.”

20 N.Y. at 635-36.

In the next post, we will see how Judge Clerke uses this foundation.

Lemmon v. People IX

I have reviewed, more or less completely as the case may be, the majority opinions of Judges Denio and Wright and the brief dissents of Chief Judge Comstock and Judge Selden.

The third dissenter, and the only judge who wrote a dissent of any length, was Thomas W. Clerke. Judge Clerke bears a very odd, double role in the case. He seems to have been a Justice of the Supreme Court who was sitting as a Judge of the New York Court of Appeals "ex officio." In all honesty, I'm not sure what this means in this context. Probably, he was a senior judge of the Supreme Court who sat on the Court of Appeals either by virtue of his seniority or by designation.

Judge Clerke's role was particularly unusual, first, because he a member of both the Supreme Court panel whose decision was appealed to the Court of Appeals, and of the Court of Appeals when it heard and decided that appeal. In other words, he sat in review of the decision of the panel of which he himself was a member.

Second, and even more oddly, he voted differently on the two panels. In the Supreme Court, he voted to affirm (and thus in favor of freeing the slaves). At the Court of Appeals, he voted to reverse the Supreme Court panel (including himself)!

In his Court of Appeals dissent, Judge Clerke even mentioned his change of view. He referred to "the judge who decided this case in the first instance (by whose reasoning, I may be permitted here to say, I was erroneously influenced in voting at the general term of the Supreme Court in the first district)."

20 N.Y. at 636.

Very, very strange.