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Problem of Comity and Conflict of Laws

The fugitive slave cases raised the legal principle of comity. The term means the courtesy or consideration that one jurisdiction gives by enforcing the laws of another, granted out of respect and deference rather than obligation. Judges often have to decide which conflicting body of laws will be applied. Comity had enormous implications for

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the system of racial control exercised in the South, for as long as free states continued to respect the legal rights of masters to exercise dominion over their slaves while sojourning or in transit, then slave property remained mobile. Until the 1830s a "sectional accommodation" existed, in which northern courts accepted that southern laws protected masters sojourning with their slaves in free states. 32

This accommodation broke down in the 1830s and it was Justice Story, who later wrote the opinion in Prigg, that contributed intellectual force to its collapse. Story in 1834 published Commentaries on the Conflict of Laws, and in it he argued that the practice of comity was strictly voluntary and rested on no moral compulsion. Every state, according to Story, had complete control over what law should be enforced within its boundaries. The Story doctrine confirmed the jurisdictional supremacy of the forum state, which is the place where the case was heard. The implications were far- reaching, because the new doctrine permitted courts and judges in the free states to refuse to return slaves to their masters, because they were not commanded by the law of their state to do so. The new conflict-of-laws principle also meant that, except for the federal Fugitive Slave Act, there was no necessary legal basis for the return of slaves. The new legal principle tightened already taut sectional lines.

The significance of the new doctrine of comity first appeared in Commonwealth v. Aves ( 1836), in which Lemuel Shaw wrote the opinion. The case involved Med, a six- year-old girl brought by her mistress into Massachusetts on a visit. Abolitionist women in Boston secured counsel, who sought a writ of habeas corpus for her release.

Shaw explicitly rejected an appeal made on the principle of comity as the basis for the interstate rendition of the girl. Instead, Shaw followed Mansfield's earlier argument in Somerset and the view of comity asserted by Story. Slavery, Shaw declared, was contrary to natural right and dependent on local law for its "existence and efficacy." To extend comity in such cases would mean permitting any amount of slaveholding residence short of outright domicile, and that, according to Shaw, was repugnant to "sound policy." 33 Shaw found that comity might apply on a regular basis to property, but (in a clear swipe at one of the cardinal features of southern slave law) slaves were not property and therefore comity would not extend to them. Because Massachusetts had failed to enact a "sojourning statute" (an act that permitted masters to have their slaves with them), it followed that, except for accidental and brief intrusions by masters with slaves into the state, slaves would become free under Massachusetts law once they reached the state. Southerners disapproved of this new arrangement, and one Georgia judge described the new comity principles formulated by Story and Shaw as "the foul spirit . . . of modern fanaticism." 34



Neither the decision in Aves nor the approach of most northern judges to the legal status of slaves brought into free territory was so sweeping. Shaw did not apply his decision to fugitive slaves nor did he apply it to any slave who voluntarily returned home with his master. Shaw was a conservative, and he and other judges--in both the North and South--were unwilling to use judicial power to declare that slavery was illegal. The antislavery bar charged that free-state judges were too willing to buckle under to slaveholders.

 


Date: 2015-01-29; view: 755


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