The Southwestern Historical Quarterly, Volume 86, July 1982 - April, 1983 Page: 117
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antebellum America included the problem of determining the legal
status of slaves whose owners took or sent them into free states. Did
such transit, visit, sojourn, or residence convey freedom? State law,
usually as applied by state courts, governed most controversies over
property and personal rights, and this remained true for nonfugitive
slaves, although federal involvement increased in the 184os and 1850s.
But slavery proved explosive here as in other areas. The legal systems
of the states and federal government responded to the issue in ways
that led both Northerners and Southerners to see an ominously flawed
union. Interstate comity-the concern for legal harmony, reciprocal
respect, and mutual self-interest that leads one jurisdiction to give
effect to the laws and rulings of (in legal jargon) a "foreign" jurisdic-
tion-eventually failed to carry the burden of mediating disputes
about the nonfugitives. A few highlights may serve to convey the nu-
ances of Finkelman's argument.
In the early national period, northern states generally accorded some
degree of comity to the "peculiar institution." Even Pennsylvania, least
hospitable in 1787, allowed transit, visiting, or sojourning with slaves
for up to six months. By the 183os, however, other northern states
moved toward rejecting comity. Especially notable was the Massachu-
setts decision in Commonwealth v. Aves (1836). Because slavery did
not exist in Massachusetts law, a nonfugitive slave within the state
could not be forcibly detained within, or involuntarily removed from,
the state. Because slavery ran counter to the state's public policy and
because allowing visitors or sojourners to hold property in slaves would
provide slavery a general base within the state, comity carried no
weight. But the court carefully noted Aves did not decide the issue of
mere transit. Thereafter, northern jurisdictions attacked transit rights
as well. In the Lemmon case, New York's highest court finally decided,
in 186o, against any right to hold slaves in transit. Had the outbreak
of war not intervened, the United States Supreme Court would proba-
bly have heard Lemmon and, given its recent stance in Dred Scott,
would have had little trouble fashioning a "constitutionalized" right
of comity. In an effective counter-factual presentation, Finkelman sug-
gests that still further litigation could significantly have opened free
states to slavery, as Northerners feared.
By 186o, southern jurisdictions likewise questioned comity. Focus-
ing on inheritance suits within the South, by slaves freed under north-
ern state law, Finkelman modifies the view that southern courts con-
sistently allowed certain types of slave freedom claims. The change, he
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 86, July 1982 - April, 1983, periodical, 1982/1983; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101209/m1/137/: accessed March 20, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.