Commonwealth versus Thomas Aves.

35 Mass. 193 (1936)

 

Shaw C. J. delivered the opinion of the Court. The question now before the Court arises upon a return to a habeas corpus, originally issued in vacation by Mr. Justice Wilde, for the purpose of bringing up the person of a colored child named Med, and instituting a legal inquiry into the fact of her [**25] detention, and the causes for which she was detained. By the provisions of the revised code, the practice upon habeas corpus is somewhat altered. In case the party complaining, or in behalf of whom complaint is made, on the ground of unlawful imprisonment, is not in the custody of an officer, as of a sheriff or deputy, or corresponding officer of the United States, the writ is directed to the sheriff, requiring him or his deputy to take the body of the person thus complaining, or in behalf of whom complaint is thus made, and have him before the court or magistrate issuing the writ, and to summon the party alleged to have or claim the custody of such person, to appear at the same time, and show the cause of the detention. The person thus summoned is to make a statement under oath, setting forth all the facts fully and particularly; and in case he claims the custody of such party, the grounds of such claim must be fully set forth. This statement is in the nature of a return to the writ, as made under the former practice, and will usually present the material facts upon which the questions arise. Such return, however, is not conclusive of the facts stated in it, but the court is to [**26] proceed and inquire into all the alleged causes of detention, and decide upon them in a summary manner. But the court may, if occasion require it, adjourn the examination, and in the mean time bail the party, or commit him to a general or special custody, as the age, health, sex, and other circumstances of the case may require. It is further provided, that when the writ is issued by one judge of the court in vacation, and in the mean time, before a final decision, the court shall meet in the same county, the proceedings may be adjourned into the court, and there be conducted to a final issue, in the same manner as if they had been originally commenced by a writ issued from the court. I have stated these provisions the more minutely, because there have been as yet but few proceedings under the Revised Statutes, and the practice is yet to be established.

[*207] Upon the return of this writ before Mr. Justice Wilde, a statement was made by Aves, the respondent; the case was then postponed. It has since been fully and very ably argued before all the judges, and is now transferred to and entered in court, and stands here for judgment, in the same manner as if the writ had been [**27] originally returnable in court. Notice having been given to Mr. and Mrs. Slater, an appearance has been entered for them, and in this state of the case and of the parties, the cause has been heard. The statement on oath is now to be considered in the same aspect as if made by Mr. Slater. It is made in fact by Aves, claiming the custody of the slave in right of Slater, and that claim is sanctioned by Slater, who appears by his attorney to maintain and enforce it. He claims to have the child as master, and carry her back to New Orleans, and whether the claim has been made in terms or not, to hold and return her as a slave, that intent is manifest, and the argument has very properly placed the claim upon that ground.

The case presents an extremely interesting question, not so much on account of any doubt or difficulty attending it, as on account of its important consequences to those who may be affected by it, either as masters or slaves.

The precise question presented by the claim of the respondent is, whether a citizen of any one of the United States, where negro slavery is established by law, coming into this State, for any temporary purpose of business or pleasure, staying some [**28] time, but not acquiring a domicil here, who brings a slave with him as a personal attendant, may restrain such slave of his liberty during his continuance here, and convey him out of this State on his return, against his consent. It is not contended that a master can exercise here any other of the rights of a slave owner, than such as may be necessary to retain the custody of the slave during his residence, and to remove him on his return.

Until this discussion, I had supposed that there had been adjudged cases on this subject in this Commonwealth; and it is believed to have been a prevalent opinion among lawyers, that if a slave is brought voluntarily and unnecessarily within the limits of this State, he becomes free, if he chooses to avail himself of the provisions of our laws; not so much because his [*208] coming within our territorial limits, breathing our air, or treading on our soil, works any alteration in his status, or condition, as settled by the law of his domicil, as because by the operation of our laws, there is no authority on the part of the master, either to restrain the slave of his liberty, whilst here, or forcibly to take him into custody in order to his [**29] removal. There seems, however, to be no decided case on the subject reported.

It is now to be considered as an established rule, that by the constitution and laws of this Commonwealth, before the adoption of the constitution of the United States, in 1789, slavery was abolished, as being contrary to the principles of justice, and of nature, and repugnant to the provisions of the declaration of rights, which is a component part of the constitution of the State.

It is not easy, without more time for historical research than I now have, to show the course of slavery in Massachusetts. By a very early colonial ordinance, (1641,) it was ordered, that there should be no bond slavery, villenage, or captivity amongst us, with the exception of lawful captives taken in just wars, or those judicially sentenced to servitude, as a punishment for crime. And by an act a few years after, (1646,) manifestly alluding to some transaction then recent, the general court conceiving themselves bound to bear witness against the heinous and crying sin of manstealing, &c., ordered that certain negroes be sent back to their native country (Guinea) at the charge of the country, with a letter from the governor [**30] expressive of the indignation of the court thereabouts. See Ancient Charters, &c., 52, c. 12, 2, 3.

But notwithstanding these strong expressions in the acts of the colonial government, slavery to a certain extent seems to have crept in; not probably by force of any law, for none such is found or known to exist; but rather, it may be presumed, from that universal custom, prevailing through the European colonies, in the West Indies, and on the continent of America, and which was fostered and encouraged by the commercial policy of the parent states. That it was so established, is shown by this, that by several provincial acts, passed at various times, in the early part of the last century, slavery was recognized as existing in fact, and various regulations were prescribed [*209] in reference to it. The act passed in June, 1703, Anc. Charters, &c., 746, imposed certain restrictions upon manumission, and subjected the master to the relief and support of the slaves, notwithstanding such manumission, if the regulations were not complied with. The act of October, 1705, Anc. Charters, &c., 748, 749, levied a duty and imposed various restrictions upon the importation of negroes, [**31] and allowed a drawback upon any negro thus imported and for whom the duty had been paid, if exported within the space of twelve months and bona fide sold in any other plantation.

How, or by what act particularly, slavery was abolished in Massachusetts, whether by the adoption of the opinion in Sommersett's case, as a declaration and modification of the common law, or by the Declaration of Independence, or by the constitution of 1780, it is not now very easy to determine, and it is rather a matter of curiosity than of utility; it being agreed on all hands, that if not abolished before, it was so by the declaration of rights. In the case of Winchendon v. Hatfield, 4 Mass. 122, which was a case between two towns respecting the support of a pauper, Chief Justice Parsons, in giving the opinion of the Court, states, that in the first action which came before the Court after the establishment of the constitution, the judges declared, that by virtue of the declaration of rights, slavery in this State was no more. And he mentions another case, Littleton v. Tuttle, 4 Mass. 128, note, in which it was stated as the unanimous opinion of the Court, that a negro born within [**32] the State, before the constitution, was born free, though born of a female slave. The chief justice, however, states, that the general practice and common usage have been opposed to this opinion.

It has recently been stated as a fact, that there were judicial decisions in this State prior to the adoption of the present constitution, holding that negroes born here of slave parents were free. A fact is stated in the above opinion of Chief Justice Parsons, which may account for this suggestion. He states that several negroes, born in this country, of imported slaves, had demanded their freedom of their masters by suits at law, and obtained it by a judgment of court. The defence of the master, he says, was faintly made, for such was the temper of [*210] the times, that a restless, discontented slave was worth little, and when his freedom was obtained in a course of legal proceedings, his master was not holden for his support, if he became poor. It is very probable, therefore, that this surmise is correct, and that records of judgments to this effect may be found; but they would throw very little light on the subject.

Without pursuing this inquiry farther, it is sufficient for [**33] the purposes of the case before us, that by the constitution adopted in 1780, slavery was abolished in Massachusetts, upon the ground that it is contrary to natural right and the plaint principles of justice. The terms of the first article of the declaration of rights are plain and explicit. "All men are born free and equal, and have certain natural, essential, and unalienable rights, which are, the right of enjoying and defending their lives and liberties, that of acquiring, possessing, and protecting property." It would be difficult to select words more precisely adapted to the abolition of negro slavery. According to the laws prevailing in all the States, where slavery is upheld, the child of a slave is not deemed to be born free, a slave has no right to enjoy and defend his own liberty, or to acquire, possess, or protect property. That the description was broad enough in its terms to embrace negroes, and that it was intended by the framers of the constitution to embrace them, is proved by the earliest contemporaneous construction, by an unbroken series of judicial decisions, and by a uniform practice from the adoption of the constitution to the present time. The whole tenor of [**34] our policy, of our legislation and jurisprudence, from that time to the present, has been consistent with this construction, and with no other.

Such being the general rule of law, it becomes necessary to inquire how far it is modified or controlled in its operation; either,

1. By the law of other nations and states, as admitted by the comity of nations to have a limited operation within a particular state; or

2. By the constitution and laws of the United States.

In considering the first, we may assume that the law of this State is analogous to the law of England, in this respect; that while slavery is considered as unlawful and inadmissible in both, [*211] and this because contrary to natural right and to laws designed for the security of personal liberty, yet in both, the existence of slavery in other countries is recognized, and the claims of foreigners, growing out of that condition, are, to a certain extent, respected. Almost the only reason assigned by Lord Mansfield in Sommersett's case was, that slavery is of such a nature, that it is incapable of being introduced on any reasons moral or political, but only by positive law; and, it is so odious, that nothing can [**35] be suffered to support it but positive law.

The same doctrine is clearly stated in the full and able opinion of Marshall C. J., in the case of the Antelope, 10 Wheat. 66, 120. He is speaking of the slave trade, but the remark itself shows that it applies to the state of slavery. "That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor, is generally admitted, and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of the admission."

But although slavery and the slave trade are deemed contrary to natural right, yet it is settled by the judicial decisions of this country and of England, that it is not contrary to the law of nations. The authorities are cited in the case of the Antelope, and that case is itself an authority directly in point. The consequence is, that each independent community, in its intercourse with every other, is bound to act on the principle, that such other country has a full and perfect authority to make such laws for the government of its own subjects, as its own judgment shall dictate and [**36] its own conscience approve, provided the same are consistent with the law of nations; and no independent community has any right to interfere with the acts or conduct of another state, within the territories of such state, or on the high seas, which each has an equal right to use and occupy; and that each sovereign state, governed by its own laws, although competent and well authorized to make such laws as it may think most expedient to the extent of its own territorial limits, and for the government of its own subjects, yet beyond those limits, and over those who are not her own subjects, has no authority to enforce her own laws, [*212] or to treat the laws of other states as void, although contrary to its own views of morality.

This view seems consistent with most of the leading cases on the subject.

Sommersett's case, 20 Howell's State Trials, 1, as already cited, decides that slavery, being odious and against natural right, cannot exist, except by force of positive law. But it clearly admits, that it may exist by force of positive law. And it may be remarked, that by positive law, in this connection, may be as well understood customary law as the enactment of a statute; [**37] and the word is used to designate rules established by tacit acquiescence or by the legislative act of any state, and which derive their force and authority from such acquiescence or enactment, and not because they are the dictates of natural justice, and as such of universal obligation.

Le Louis, 2 Dodson, 236. This was an elaborate opinion of Sir William Scott. It was the case of a French vessel seized by an English vessel in time of peace, whilst engaged in the slave trade. It proceeded upon the ground, that a right of visitation, by the vessels of one nation, of the vessels of another, could only be exercised in time of war, or against pirates, and that the slave trade was not piracy by the laws of nations, except against those by whose government it has been so declared by law or by treaty. And the vessel was delivered up.

The Amedie, 1 Acton, 240. The judgment of Sir William Grant in this case, upon the point on which the case was decided, that of the burden of proof, has been doubted. But upon the point now under discussion, he says, "but we do now lay down as a principle, that this is a trade which cannot, abstractedly speaking, be said to have a legitimate [**38] existence. I say, abstractedly speaking, because we cannot legislate for other countries; nor has this country a right to control any foreign legislature, that may give permission to its subjects to prosecute this trade." He however considered, in consequence of the principles declared by the British government, that he was bound to hold, prima facie, that the traffic was unlawful, and threw on the claimant the burden of proof, that the traffic was permitted by the law of his own country.

[*213] The Diana, 1 Dodson, 95. This case strongly corroborates the general principle, that though the slave trade is contrary to the principles of justice and humanity, it cannot with truth be said, that it is contrary to the laws of all civilized nations; and that courts will respect the property of persons engaged in it under the sanction of the laws of their own country.

Two cases are cited from the decisions of courts of common law, which throw much light upon the subject.

Madrazo v. Willes, 3 Barn. & Ald. 353. It was an action brought by a Spaniard against a British subject, who had unlawfully, and without justifiable cause, captured a ship with three hundred slaves on [**39] board. The only question was the amount of damages. Abbott C. J., who tried the cause, in reference to the very strong language of the acts of Parliament, declaring the traffic in slaves a violation of right and contrary to the first principles of justice and humanity, doubted whether the owner could recover damages, in an English court of justice, for the value of the slaves as property, and directed the ships and the slaves to be separately valued. On further consideration, he and the whole court were of opinion, that the plaintiff was entitled to recover for the value of the slaves. That opinion went upon the ground, that the traffic in slaves, however wrong in itself, if prosecuted by a Spaniard between Spain and the coast of Africa, and if permitted by the laws of Spain, and not restrained by treaty, could not be lawfully interrupted by a British subject, on the high seas, the common highway of nations. And Mr. Justice Bayley, in his opinion, after stating the general rule, that a foreigner is entitled, in a British court of justice, to compensation for a wrongful act, added, that although the language used by the statutes was very strong, yet it could only apply to British [**40] subjects. It is true, he further says, that if this were a trade contrary to the laws of nations, a foreigner could not maintain this action. And Best J. spoke strongly to the same effect, adding, that the statutes "speak in just terms of indignation of the horrible traffic in human beings, but they speak only in the name of the British nation. If a ship be acting contrary to the general law of nations, she is thereby subject to confiscation; but it is [*214] impossible to say, that the slave trade is contrary to what may be called the common law of nations."

Forbes v. Cochrane, 2 Barn. & Cressw. 448; S. C. 3 Dowl. & Ryl. 679. This case has been supposed to conflict with the one last cited; but I apprehend, in considering the principles upon which they were decided, they will be found to be perfectly reconcilable. The plaintiff, a British subject, domiciled in East Florida, where slavery was established by law, was the owner of a plantation, and of certain slaves, who escaped thence and got on board a British ship of war on the high seas. It was held, that he could not maintain an action against the master of the ship for harboring the slaves after notice and [**41] demand of them. Some of the opinions given in this case are extremely instructive and applicable to the present. Holroyd J., in giving his opinion, said, that the plaintiff could not found his claim to the slaves upon any general right, because by the English laws such a right cannot be considered as warranted by the general law of nature, that if the plaintiff could claim at all, it must be in virtue of some right which he had acquired by the law of the country where he was domiciled, that where such rights are recognized by law, they must be considered as founded, not upon the law of nature, but upon the particular law of that country, and must be co-extensive with the territories of that state; that if such right were violated by a British subject, within such territory, the party grieved would be entitled to a remedy, but that the law of slavery is a law in invitum, and when a party gets out of the territory where it prevails, and under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the place only, does not continue. So in speaking of the effect of bringing [**42] a slave into England, he says, he ceases to be a slave in England, only because there is no law which sanctions his detention in slavery. Best J. declared his opinion to the same effect. "Slavery is a local law, and therefore if a man wishes to preserve his slaves, let him attach them to him by affection, or make fast the bars of their prison, or rivet well their chains, for the instant they get beyond the limits where slavery is recognized by the local [*215] law, they have broken their chains, they have escaped from their prison, and are free."

That slavery is a relation founded in force, not in right, existing, where it does exist, by force of positive law, and not recognized as founded in natural right, is intimated by the definition of slavery in the civil law; "Servitus est constitutio juris gentium, qua quis dominio alieno contra naturam subjicitur."

Upon a general review of the authorities, and upon an application of the well established principles upon this subject, we think they fully maintain the point stated, that though slavery is contrary to natural right, to the principles of justice, humanity and sound policy, as we adopt them and found our own laws upon [**43] them, yet not being contrary to the laws of nations, if any other state or community see fit to establish and continue slavery by law, so far as the legislative power of that country extends, we are bound to take notice of the existence of those laws, and we are not at liberty to declare and hold an act done within those limits, unlawful and void, upon our views of morality and policy, which the sovereign and legislative power of the place has pronounced to be lawful. If, therefore, an unwarranted interference and wrong is done by our citizens to a foreigner, acting under the sanction of such laws, and within their proper limits, that is, within the local limits of the power by whom they are thus established, or on the high seas, which each and every nation has a right in common with all others to occupy, our laws would no doubt afford a remedy against the wrong done. So, in pursuance of a well known maxim, that in the construction of contracts, the lex loci contractus shall govern, if a person, having in other respects a right to sue in our courts, shall bring an action against another, liable in other respects to be sued in our courts, upon a contract made upon the subject of [**44] slavery in a state where slavery is allowed by law, the law here would give it effect. As if a note of hand made in New Orleans were sued on here, and the defence should be, that it was on a bad consideration, or without consideration, because given for the price of a slave sold, it may well be admitted, that such a [*216] defence could not prevail, because the contract was a legal one by the law of the place where it was made.

This view of the law applicable to slavery, marks strongly the distinction between the relation of master and slave, as established by the local law of particular states, and in virtue of that sovereign power and independent authority which each independent state concedes to every other, and those natural and social relations, which are everywhere and by all people recognized, and which, though they may be modified and regulated by municipal law, are not founded upon it, such as the relation of parent and child, and husband and wife. Such also is the principle upon which the general right of property is founded, being in some form universally recognized as a natural right, independently of municipal law.

This affords an answer to the argument drawn from [**45] the maxim, that the right of personal property follows the person, and therefore, where by the law of a place a person there domiciled acquires personal property, by the comity of nations the same must be deemed his property everywhere. It is obvious, that if this were true, in the extent in which the argument employs it, if slavery exists anywhere, and if by the laws of any place a property can be acquired in slaves, the law of slavery must extend to every place where such slaves may be carried. The maxim, therefore, and the argument can apply only to those commodities which are everywhere, and by all nations, treated and deemed subjects of property. But it is not speaking with strict accuracy to say, that a property can be acquired in human beings, by local laws. Each state may, for its own convenience, declare that slaves shall be deemed property, and that the relations and laws of personal chattels shall be deemed to apply to them; as, for instance, that they may be bought and sold, delivered, attached, levied upon, that trespass will lie for an injury done to them, or trover for converting them. But it would be a perversion of terms to say, that such local laws do in fact make [**46] them personal property generally; they can only determine, that the same rules of law shall apply to them as are applicable to property, and this effect will follow only so far as such laws proprio vigore can operate.

[*217] The same doctrine is recognized in Louisiana. In the case of Lunsford v. Coquillon, 14 Martin's Rep. 402, it is thus stated; -- "The relation of owner and slave is, in the States of this Union in which it has a legal existence, a creature of the municipal law." See Story's Conflict of Laws, 92, 97.

The same principle is declared by the court in Kentucky, in the case of Rankin v. Lydia, 3 Marshall, 470. They say, slavery is sanctioned by the laws of this State; but we consider this as a right existing by positive law of a municipal character, without foundation in the law of nature.

The conclusion to which we come from this view of the law is this:

That by the general and now well established law of this Commonwealth, bond slavery cannot exist, because it is contrary to natural right, and repugnant to numerous provisions of the constitution and laws, designed to secure the liberty and personal rights of all persons within its limits [**47] and entitled to the protection of the laws.

That though by the laws of a foreign state, meaning by "foreign," in this connection, a state governed by its own laws, and between which and our own there is no dependence one upon the other, but which in this respect are as independent as foreign states, a person may acquire a property in a slave, such acquisition, being contrary to natural right, and effected by the local law, is dependent upon such local law for its existence and efficacy, and being contrary to the fundamental law of this State, such general right of property cannot be exercised or recognized here.

That, as a general rule, all persons coming within the limits of a state, become subject to all its municipal laws, civil and criminal, and entitled to the privileges which those laws confer; that this rule applies as well to blacks as whites, except in the case of fugitives, to be afterwards considered; that if such persons have been slaves, they become free, not so much because any alteration is made in their status, or condition, as because there is no law which will warrant, but there are laws, if they choose to avail themselves of them, which prohibit, their forcible [**48] detention or forcible removal.

That the law arising from the comity of nations cannot apply; [*218] because if it did, it would follow as a necessary consequence, that all those persons, who, by force of local laws, and within all foreign places where slavery is permitted, have acquired slaves as property, might bring their slaves here, and exercise over them the rights and power which an owner of property might exercise, and for any length of time short of acquiring a domicil; that such an application of the law would be wholly repugnant to our laws, entirely inconsistent with our policy and our fundamental principles, and is therefore inadmissible.

Whether, if a slave, voluntarily brought here and with his own consent returning with his master, would resume his condition as a slave, is a question which was incidentally raised in the argument, but is one on which we are not called on to give an opinion in this case, and we give none. From the principle above stated, on which a slave brought here becomes free, to wit, that he becomes entitled to the protection of our laws, and there is no law to warrant his forcible arrest and removal, it would seem to follow as a necessary [**49] conclusion, that if the slave, waives the protection of those laws, and returns to the state where he is held as a slave, his condition is not changed.

In the case of The Slave, Grace, 2 Haggard's Adm. R. 94, this question was fully considered by Sir William Scott, in the case of a slave brought from the West Indies to England, and afterwards voluntarily returning to the West Indies; and he held that she was reinstated in her condition of slavery.

A different decision, I believe, has been made of the question in some of the United States; but for the reasons already given, it is not necessary to consider it further here.

The question has thus far been considered as a general one, and applicable to cases of slaves brought from any foreign state or country; and it now becomes necessary to consider how far this result differs, where the person is claimed as a slave by a citizen of another State of this Union. As the several States, in all matters of local and domestic jurisdiction are sovereign, and independent of each other, and regulate their own policy by their own laws, the same rule of comity applies to them on these subjects as to foreign states, except so far as the [**50] respective rights and duties of the several States, [*219] and their respective citizens, are affected and modified by the constitution and laws of the United States.

In art. 4, 2, the constitution declares that no person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

The law of congress made in pursuance of this article provides, that when any person held to labor in any of the United States, &c. shall escape into any other of the said States or Territories, the person entitled, &c. is empowered to arrest the fugitive, and upon proof made that the person so seized, under the law of the State from which he or she fled, owes service, &c. Act of February 12, 1793, c. 7, 3.

In regard to these provisions, the Court are of opinion, that as by the general law of this Commonwealth, slavery cannot exist, and the rights and powers of slave owners cannot be exercised therein; the effect of this provision in the constitution and laws of the United States, [**51] is to limit and restrain the operation of this general rule, so far as it is done by the plain meaning and obvious intent and import of the language used, and no further. The constitution and law manifestly refer to the case of a slave escaping from a State where he owes service or labor, into another State or Territory. He is termed a fugitive from labor; the proof to be made is, that he owed service or labor, under the laws of the State or Territory from which he fled, and the authority is given to remove such fugitive to the State from which he fled. This language can, by no reasonable construction, be applied to the case of a slave who has not fled from the State, but who has been brought into the State by his master.

The same conclusion will result from a consideration of the well known circumstances under which this constitution was formed. Before the adoption of the constitution, the States were to a certain extent, sovereign and independent, and were in a condition to settle the terms upon which they would form a more perfect union. It has been contended by some overzealous philanthropists, that such an article in the constitution [*220] could be of no binding [**52] force or validity, because it was a stipulation contrary to natural right. But it is difficult to perceive the force of this objection. It has already been shown, that slavery is not contrary to the laws of nations. It would then be the proper subject of treaties among sovereign and independent powers. Suppose instead of forming the present constitution, or any other confederation, the several States had become in all respects sovereign and independent, would it not have been competent for them to stipulate by treaty that fugitive slaves should be mutually restored, and to frame suitable regulations, under which such a stipulation should be carried into effect? Such a stipulation would be highly important and necessary to secure peace and harmony between adjoining nations, and to prevent perpetual collisions and border wars. It would be no encroachment on the rights of the fugitive; for no stranger has a just claim to the protection of a foreign state against its will, especially where a claim to such protection would be likely to involve the state in war; and each independent state has a right to determine by its own laws and treaties, who may come to reside or seek shelter within [**53] its limits, and to prescribe the terms. Now the constitution of the United States partakes both of the nature of a treaty and of a form of government. It regards the States, to a certain extent, as sovereign and independent communities, with full power to make their own laws and regulate their own domestic policy, and fixes the terms upon which their intercourse with each other shall be conducted. In respect to foreign relations, it regards the people of the States as one community, and constitutes a form of government for them. It is well known that when this constitution was formed, some of the States permitted slavery and the slave-trade, and considered them highly essential to their interest, and that some other States had abolished slavery within their own limits, and from the principles deduced and policy avowed by them, might be presumed to desire to extend such abolition further. It was therefore manifestly the intent and the object of one party to this compact to enlarge, extend and secure, as far as possible, the rights and powers of the owners of slaves, within their own limits, as well as in other States, and of the other party to limit and restrain them. [*221] Under [**54] these circumstances the clause in question was agreed on and introduced into the constitution; and as it was well considered, as it was intended to secure future peace and harmony, and to fix as precisely as language could do it, the limit to which the rights of one party should be exercised within the territory of the other, it is to be presumed that they selected terms intended to express their exact and their whole meaning; and it would be a departure from the purpose and spirit of the compact to put any other construction upon it, than that to be derived from the plain and natural import of the language used. Besides, this construction of the provision in the constitution, gives to it a latitude sufficient to afford effectual security to the owners of slaves. The States have a plenary power to make all laws necessary for the regulation of slavery and the rights of the slave owners, whilst the slaves remain within their territorial limits; and it is only when they escape, without the consent of their owners, into other States, that they require the aid of other States, to enable them to regain their dominion over the fugitives.

But this point is supported by most respectable and [**55] unexceptionable authorities.

In the case of Butler v. Hopper, 1 Wash. C. C. 499, it was held by Mr. Justice Washington, in terms, that the provision in the constitution which we are now considering, does not "extend to the case of a slave voluntarily carried by his master into another State, and there leaving him under the protection of some law declaring him free." In this case, however, the master claimed to hold the slave in virtue of a law of Pennsylvania, which permitted members of congress and sojourners, to retain their domestic slaves, and it was held that he did not bring himself within either branch of the exception, because he had, for two years of the period, ceased to be a member of congress, and so lost the privilege; and by having become a resident could not claim as a sojourner. The case is an authority to this point, that the claimant of a slave, to avail himself of the provisions of the constitution and laws of the United States, must bring himself within their plain and obvious meaning, and they will not be extended by construction; and that the clause in the constitution is confined to the [*222] case of a slave escaping from one State, and fleeing [**56] to another.

But in a more recent case, the point was decided by the same eminent judge. Ex parte Simmons, 4 Wash. C. C. 396. It was an application for a certificate under 3, of the act of February 12, 1793. He held that both the constitution and laws of the United States apply only to fugitives, escaping from one State and fleeing to another, and not to the case of a slave voluntarily brought by his master.

Another question was made in that case, whether the slave was free by the laws of Pennsylvania, which, like our own in effect, liberate slaves voluntarily brought within the State, but there is an exception in favor of members of congress, foreign ministers and consuls, and sojourners: but this provision is qualified as to sojourners and persons passing through the State, in such manner as to exclude them from the benefit of the exception, if the slave was retained in the State longer than six months. The slave in that case having been detained in the State more than six months, was therefore held free.

This case is an authority to this point; -- the general rule being, that if a slave is brought into a State where the laws do not admit slavery, he will be held free, [**57] the person who claims him as a slave under any exception or limitation of the general rule, must show clearly that the case is within such exception.

The same principle was substantially decided by the state court in the same State in the case of Commonwealth v. Holloway, 2 Serg. & Rawle, 305. It was the case of a child of a fugitive slave, born in Pennsylvania. It was held, that the constitution of the United States was not inconsistent with the law of Pennsylvania; that as the law and constitution of the United States did not include the issue of fugitive slaves in terms, it did not embrace them by construction or implication. The court considers the law as applying only to those who escape. Yet by the operation of the maxim which obtains in all the States wherein slavery is permitted by law, partus sequitur ventrem, the offspring would follow the condition of the mother, if either the rule of comity contended for applied, or if the law of the United States could be extended by construction.

The same decision has been made in Indiana. 3 American Jurist, 404.

[*223] In Louisiana, it has been held, that if a person with a slave, goes into a State to reside, [**58] where it is declared that slavery shall not exist, for ever so short a time, the slave ipso facto becomes free, and will be so adjudged and considered afterwards in all other States; and a person moving from Kentucky to Ohio to reside, his slaves thereby became free, and were so held in Louisiana. This case also fully recognizes the authority of States to make laws dissolving the relation of master and slave; and considers the special limitation of the general power, by the federal constitution, as a forcible implication in proof of the existence of such general power. Lunsford v. Coquillon, 14 Martin's Rep. 403. *

 

* Marie Louise v. Marot et al. 9 Curry's (Louisiana) R. 473. "The fact of a slave being taken to the kingdom of France or other country, by the owner, where slavery or involuntary servitude is not tolerated, operates on the condition of the slave and produces immediate emancipation. Where a slave becomes free by the laws of another country or state to which he is taken by the owner, it is not in the power of the latter ever again to reduce him to slavery." See also Nancy Jackson v. Bulloch, 12 Conn. 38, Julia v. McKinney, 3 Mo. 270.

[**59]

And in the above cited case from Louisiana, it is very significantly remarked, that such a construction of the constitution and law of the United States can work injury to no one, for the principle acts only on the willing, and volenti non fit injuria.

The same rule of construction is adopted in analogous cases in other countries, that is, where an institution is forbidden, but where for special reasons and to a limited extent such prohibition is relaxed, the exemption is to be construed strictly, and whoever claims the exemption, must show himself clearly within it, and where the facts do not bring the case within the exemption, the general rule has its effect.

By a general law of France, all persons inhabiting or being within the territorial limits of France are free. An edict was passed by Louis XIV. called "Le Code Noir," respecting slavery in the colonies. In 1716, an edict was published by Louis XV., concerning slavery in the colonies, and reciting among other things, that many of the colonists were desirous of bringing their slaves into France, to have them confirmed in the principles of religion, and to be instructed in various arts [*224] and handicrafts, from [**60] which the colonists would derive much benefit on the return of the slaves, but that many of the colonists feared that their slaves would pretend to be free on their arrival in France, from which their owners would sustain considerable loss, and be deterred from pursuing an object at once so pious and useful. The edict then provides a series of minute regulations to be observed, both before their departure from the West Indies, and on their arrival in France, and if all these regulations are strictly complied with, the negroes so brought over to France shall not thereby acquire any right to their freedom, but shall be compellable to return; but if the owners shall neglect to comply with the prescribed regulations, the negroes shall become free, and the owners shall lose all property in them. 20 Howell's State Trials, 15, note.

The constitution and laws of the United States, then, are confined to cases of slaves escaping from other States and coming within the limits of this State without the consent and against the will of their masters, and cannot by any sound construction extend to a case where the slave does not escape and does not come within the limits of this State against the [**61] will of the master, but by his own act and permission. The provision is to be construed according to its plain terms and import, and cannot be extended beyond this, and where the case is not that of an escape, the general rule shall have its effect. It is upon these grounds we are of opinion, that an owner of a slave in another State where slavery is warranted by law, voluntarily bringing such slave into this State, has no authority to detain him against his will, or to carry him out of the State against his consent, for the purpose of being held in slavery.

This opinion is not to be considered as extending to a case where the owner of a fugitive slave, having produced a certificate according to the law of the United States, is bona fide removing such slave to his own domicil, and in so doing passes through a free State; where the law confers a right or favor, by necessary implication it gives the means of enjoying it. Nor do we give any opinion upon the case, where an owner of a slave in one State is bona fide removing to another State where slavery is allowed, and in so doing necessarily passes [*225] through a free State, or where by accident or necessity he is compelled [**62] to touch or land therein, remaining no longer than necessary. Our geographical position exempts us from the probable necessity of considering such a case, and we give no opinion respecting it.

The child who is the subject of this habeas corpus, being of too tender years to have any will or give any consent to be removed, and her mother being a slave and having no will of her own and no power to act for her child, she is necessarily left in the custody of the law. The respondent having claimed the custody of the child, in behalf of Mr. and Mrs. Slater, who claim the right to carry her back to Louisiana, to be held in a state of slavery, we are of opinion that his custody is not to deemed by the Court a proper and lawful custody.

Under a suggestion made in the outset of this inquiry, that a probate guardian would probably be appointed, we shall for the present order the child into temporary custody, to give time for an application to be made to the judge of probate.