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CASE OF THE SLAVE-CHILD, MED. 
 
 I 
 
 REPORT 
 
 OF THE 
 
 ARGUMENTS OF COU 
 
 AND OF THE 
 
 OPINION OF THE COURT, 
 
 IN THE CASE OF 
 
 COMMONWEALTH w. AYES; 
 
 TRIED AND DETERMINED IN THE 
 
 SUPREME JUDICIAL COURT OF MASSACHUSETTS. 
 
 BOSTON: 
 
 PUBLISHED BY ISAAC KNAPP, 
 46, WASHINGTON STREET. 
 
 1836 . 
 
MED’S CASE. 
 
 PETITION FOR THE WRIT OF HABEAS 
 CORPUS. 
 
 To the Honorable Justices of the Supreme Judicial 
 
 Court : 
 
 The petition of Levin H. Harris, of Boston in 
 the County of Suffolk, Mariner, respectfully 
 represents,—That a certain female colored child 
 named Med, of New Orleans in the State of 
 Louisiana, an infant under the age of twenty-one 
 years, is now unlawfully restrained of her liberty 
 by Thomas Aves of said Boston, Watchman. 
 
 Your petitioner represents that he has been in¬ 
 formed and verily believes that the said Med is 
 
 claimed as a slave, by-Slater of said New 
 
 Orleans ; that she was brought from New Or¬ 
 leans to said Boston by the consent of said Slater, 
 by Mrs. Slater, his wife ; that the said Aves now 
 keeps the said Med confined in his house, No. 
 21, Pinckney Street, in said Boston, by the request 
 of the said Mrs. Slater, in order that the said 
 Mrs. Slater may carry her, the said Med back to 
 said New Orleans, as a slave.-—And your peti¬ 
 tioner fears that the said Med, who is free by the 
 law of Massachusetts, may be unlawfully carried 
 back to New-Orleans, and there made a slave, 
 unless this honorable Court will interfere for her 
 protection. 
 
 Wherefore your petitioner prays, that your 
 honors will grant a writ of habeas corpus, to bring 
 the said Med before you, and to compel the said 
 Aves to shew the cause of her detention. 
 
 Your petitioner applies in behalf of the said 
 Med, who is about six years old, not knowing 
 that the said Med has any relative in this place. 
 
 L. H. HARRIS. 
 
 Boston, August 16,1836. 
 
 WRIT OF HABEAS CORPUS. 
 
 Commonwealth of Massachusetts. 
 
 -**###*#* 
 
 | J To the Sheriffs of our several coun- 
 
 S L. S.% ties and their respective deputies, 
 
 * * Greeting. 
 
 -if##*#### 
 
 We command you that the body of Med, of 
 New Orleans, in the State of Louisiana, a color¬ 
 ed female under the age of twenty-one years, by 
 Thomas Aves of Boston, in our County of Suf¬ 
 folk, Watchman, imprisoned and restrained of her 
 liberty, as it is said, you take and have before me 
 S. S. Wilde, a Justice of our Supreme Judicial 
 Court, at the Court house in Boston, immediately 
 after the receipt of this writ, to do and receive 
 what our said Justice shall then and there con¬ 
 sider, concerning her in this behalf; and sum¬ 
 mon the said Thomas then and there to appear 
 before our said Justice, to shew the cause of the 
 taking and detaining of the said Med, and have 
 you there this writ, with your doings thereon. 
 
 Witness, S. S. Wilde at Boston, this 17th 
 day of August, in the year, one thousand eight 
 hundred and thirty-six. 
 
 S. S. WILDE, J. S. J. Court. 
 
 Suffolk ss. Boston, 17th August, 1836. In 
 obedience to this writ, I have here before the 
 Court the body of the within named Med, and 
 have summoned the within named Thomas Aves 
 to appear and shew the cause of the detaining of 
 the said Med, by reading this writ in his presence 
 and hearing, and by giving to him in hand an at¬ 
 tested copy thereof. 
 
 H. H. HUGGEFORD, Deputy Sheriff. 
 
 RETURN TO THE WRIT. 
 Commonwealth of Massachusetts. 
 
 Suffolk, ss. ) 
 
 August Eighteenth, A. D. 1836. $ 
 
 And now the said Thomas Aves makes his re¬ 
 turn of the said Writ, and states herein that he 
 
 Commonwealth of Massachusetts. 
 
 Suffolk ss. Boston, August 16, 1836. Then 
 personally appeared the above named Levin H. 
 Harris, and swore that the facts stated in the fore¬ 
 going petition were true to the best of his belief 
 and knowledge:— 
 
 Before me, 
 
 ELLIS GRAY LORING, 
 Justice of the Peace. 
 
 r A Pi f) A « 
 
 law libr, 
 
4 
 
 Med’s Case. 
 
 lias the body of the child named therein in his 
 custody : That Samuel Slater of the City of New 
 Orleans in the State of Louisiana, Merchant, a 
 citizen of the said State of Louisiana, domiciled 
 at and resident in the said City of New Orleans, 
 on or about the first day of June in the year of 
 our Lord one thousand eight hundred and thirty 
 three, or at some time during that year, in the said 
 City of New Orleans, purchased the said child 
 and its mother as and for his Slaves, the said 
 mother being then and there and long before that 
 time a slave by the Laws of the said State of 
 Louisiana, and the said child by the same Laws 
 being then and there a slave and having been 
 born in a state of slavery. That from and after 
 the time when the said child was so purchased, 
 and until on or about the first day of May now 
 last past, the said mother and child continued and 
 remained the slaves of the said Samuel Slater in 
 the said City of New Orleans, and by force of 
 the Laws of the State of Louisiana aforesaid. 
 That on or about the day and year last aforesaid, 
 Mary Slater, the lawful wife of the said Samuel 
 Slater, left the said City of New Orleans for the 
 purpose of coming to the City of Boston in this 
 Commonwealth and visiting the said Thomas 
 Aves, her father, intending to return to the said 
 City of New Orleans, and to her said husband, 
 who remained in the said City of New Orleans, 
 after an absence of four or five months for the 
 purpose aforesaid. That the said mother remain¬ 
 ed behind in the said City of New Orleans, in 
 the said state of slavery, then and still being the 
 property of the said Samuel Slater by the Laws 
 of the said state of Louisiana:—That the said 
 Mary Slater brought the said child with her from 
 the said City of New Orleans to the said City of 
 Boston, having and retaining the said child in her 
 custody as the agent and representative of her 
 said husband, whose slave the said child was by 
 the Laws of the said State of Louisiana, when 
 the 6aid child was brought away from the said 
 State of Louisiana by the said Mary Slater; The 
 object, intent and purpose of the said Mary Sla¬ 
 ter being to have the said child accompany her 
 and remain in her custody and under her care 
 during her said temporary absence from the said 
 City of New Orleans, and that the said child 
 should return with her to the said City of New 
 Orleans, the legal domicil of the said Mary Sla¬ 
 ter and of the said child. That the said child 
 was confided to the custody and care of the said 
 
 Thomas Aves by the said Mary Slater, to be by 
 him kept and nurtured during the absence of the 
 said Mary Slater from the said City of Boston for 
 a few days, she having gone to Roxbury in the 
 County of Norfolk, there to remain for that period 
 on account of ill health. And the said Thomas 
 Aves further states that by the Laws of the said 
 State of Louisiana the marriage of a slave is in 
 law wholly void. That this child is the daughter 
 of a slave, born in a state of slavery, and is by 
 force of the Laws of the same State of Louisiana 
 a natural child. That by virtue of the same Laws 
 of the State of Louisiana the mother of a natural 
 child is its legal guardian ; and that such right of 
 guardianship over the infant children of a slave, 
 where such children are not themselves slaves, 
 devolves upon the owner of the mother of such 
 infant children. That if the said child is by force 
 of the Laws of Massachusetts, now emancipated 
 and a free person, that the said Samuel Slater, as 
 the owner of the mother of this natural child is 
 entitled to the custody of the person of this child 
 as its legal guardian, and that he the said Thomas 
 Aves is the agent and legally authorised repre¬ 
 sentative of the said Samuel Slater in this behalf. 
 
 And the said Thomas Aves further states that 
 the said child is an infant of the age of six years 
 or thereabouts and wholly incapable of taking 
 care of herself. That it is absolutely necessary 
 that some person should have the custody of the 
 person of the said infant child, and the right to re¬ 
 strain it of its liberty. That no private person or 
 magistrate has, by the Laws of Massachusetts, 
 any right to take the said child out of his posses¬ 
 sion, while the said Thomas Aves continues to 
 use that possession and custody, only for the pur¬ 
 pose of benefiting the said child, and only re¬ 
 straining it of its liberty, so far as is necessary 
 for the safety and health of the said child. That 
 he, the said Thomas Aves, does not now, and has 
 not at any time, restrained the said child of its 
 liberty, in any other way, or to any greater ex¬ 
 tent, than is necessary for the health and safety 
 of the said child. 
 
 THOS. AVES. 
 
 Suffolk ss. Aug. 18, 1836. 
 
 Sworn to before me. 
 
 BENJ’N R. CURTIS, 
 Justice of Peace. 
 
ARGUMENTS OF COUNSEL. 
 
 BENJAMIN R. CURTIS, ESQ., FOR THE RESPONDENT. 
 
 May it please your Honors: 
 
 In the argument which I am about to address to 
 the Court, I shall endeavor to maintain the following 
 proposition : 
 
 That a citizen of a slaveholding state, who comes 
 to Massachusetts for a temporary purpose of busi¬ 
 ness or pleasure, and brings his slave, as a personal 
 attendant on his journey, may restrain that slave, 
 for the purpose of carrying him out of the state, and 
 returning him to the domicil of his owner. 
 
 This proposition is broad enough to cover the case 
 before the Court. If the owner, under such circum¬ 
 stances, has a right to restrain his slave for the pur¬ 
 pose of removing him to his domicil, then the custody 
 of the respondent, in this case, is a lawful custody, 
 and the child can not be discharged from it. 
 
 I shall make two points in support of this proposi¬ 
 tion. 
 
 I. That this child, by the laws of the State of Lou¬ 
 isiana, is now a slave. 
 
 II. That the Law of Massachusetts will so far re¬ 
 cognise and give effect to the Law of Louisiana, as to 
 allow the master to exercise this qualified and limit¬ 
 ed power over his slave. 
 
 The first point is free from all difficulty. It is per¬ 
 fectly clear that this child, being a slave by the laws 
 of the State of Louisiana, and having left that State 
 only for a temporary purpose, is a slave now, by the 
 laws of Louisiana. She has not been emancipated by 
 coming into a state where slavery is not recognised 
 by the Law. And the moment she returns again, 
 either to Louisiana, or any other state or county 
 where slavery is a legal institution, the right of the 
 master would he recognised as still subsisting, and as 
 having always subsisted, and would be enforced, 
 without the least diminution on account of the tem¬ 
 porary residence of the slave in a non-slaveholding 
 state. We need look only to a decision of the Courts 
 of the State of Louisiana, to be satisfied that such is 
 the law of that State. 
 
 In a case reported in the 14 Martin’s Reports 405, 
 the question came before the Court, whether a slave, 
 who had been removed into the North Western Ter¬ 
 ritory, and domiciled there, was still a slave on his 
 return to Louisiana. The North Western Territory 
 
 being under the government of the celebrated ordi¬ 
 nance of Mr. Dane, was of course a non-slaveholding 
 territory; and the court held, that, as the slave had 
 gained a domicil in that territory, he was thereby 
 emancipated. But it is hardly possible to read the 
 judgment of the learned Court in the case, without 
 perceiving that their decision would have been against 
 the freedom of the complainant, if he had gone into 
 the Territory only for a temporary purpose. If we 
 look at the reports of the decisions of other courts, we 
 shall find that this very point has been repeatedly 
 decided. 
 
 In a case reported in 2 Marshall’s Kentucky Re¬ 
 ports, 467, the Court of Appeals in Kentucky, at that 
 time composed of some very eminent judges,decided 
 that a slave, who was carried by his master into the 
 North Western Territory for a temporary purpose, 
 was still a slave on his return to Kentucky. The 
 learned counsel on the other side may perhaps not be 
 inclined to give entire credit to these decisions, be¬ 
 cause they were made in slave states, but I will now 
 refer your Honors to a decision of this point made by 
 one of the greatest judges who ever sat on any bench 
 in any country, and who will not be suspected of any 
 undue bias in favor of this institution. 
 
 In the matter of the slave Grace,(1) Lord Sfowell, sit¬ 
 ting in the High Court of Admiralty, decided that 
 Grace, a female slave, who accompanied her mistress 
 from Antigua to England, and resided there six 
 months, was a slave on her return to Antigua. That 
 although the rights of the mistress over the slave 
 were suspended, while in England, because the Eng¬ 
 lish Common Law provided no means of enforcing 
 those rights, yet they existed, and might be exercised 
 and enforced, on the return of the slave to Antigua. 
 I have only to add to the authorities which I have ci¬ 
 ted, the fact, that I have not found any thing in the 
 books, which at all conflicts with them, and therefore 
 I think I was warranted in saying that in the first 
 point there is no difficulty ; that this child is now a 
 slave by the law of Louisiana ; and that whether the 
 rights of the master are partially, or entirely suspend- 
 
 (1) 2 Haggard’s Admiralty Reports, 94. 
 
 6 
 
 H 5 Q 9 A 
 
 t-J » j; (1 
 
 1M LIBRARY 
 
6 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 ed, by coming into our territory, those rights are still 
 in existence, and would be recognised and enforced 
 by the law of the domicil of the master and the slave. 
 I proceed therefore to consider the second point:— 
 
 That the Law of Massachusetts will so far recog¬ 
 nise and give effect to the Law of Louisiana, as to al¬ 
 low the master to exercise the qualified and limited 
 right over his slave, which is claimed in this case. 
 
 Before I proceed to discuss this question, I shall 
 submit to your Honors, that it is competent for this 
 Court to decide it. No legislation is necessary. It 
 is the proper province of this Court, to determine 
 whether any, and what effect, is to be given to the 
 law of another state, within our own territory. I re¬ 
 fer your Honors to Story’s Conflict of Laws. (1) The 
 learned author is here considering how the rule as to 
 foreign laws is to be promulgated ; whether it should 
 be done by the Legislature, or the Judicial power. 
 He says ‘ In England and America, the Courts of 
 Justice have hitherto exercised the same authority,’ 
 (that is, the authority in question,) ‘ in the most am¬ 
 ple manner; and the Legislature has in no instance, 
 (it is believed,) in either country, interfered to pro¬ 
 vide any positive regulations. The common law of 
 both countries has been expanded, to meet the exer- 
 gencies of the times, as they have arisen; and so tar 
 as t’ne practice of nations, and the jus gentium pri¬ 
 vatum, has been supposed to furnish any general 
 principle, it has been followed out, with a wise and 
 inanly liberality.’ 
 
 So Ch. Jus. Parker, in Blanchard v. Russell, (2) 
 says, ‘ As the laws of foreign countries are not admit¬ 
 ted ex proprio vigors, but only ex comitate, the ju¬ 
 dicial power will exercise a discretion, with respect 
 to the laws they may be called upon to sanction.’ 
 And the same doctrine substantially, was laid down 
 by Lord Stowell. (3) 
 
 It is clear, therefore, that it is competent for the 
 Court to decide the question which we present to 
 them. 
 
 I now ask your Honors’ attention to what I think ii 
 the principal question in the case before you. It car 
 not be denied, that the general principles of interna 
 tional law are broad enough to cover this case. 1 
 shall consider presently, whether the case comei 
 within any exception to those general rules. What 1 
 now wish to prove is, that the case is within certair 
 general rules, unless it is to be excepted out of them 
 Slaves are looked upon in all codes, I believe, ir 
 two lights, as persons, and as property. What is the 
 general rule of international law, applicable to then 
 
 (1) p. 25. 
 
 (2) 13 Mass. Rep. 6. 
 
 (3) 2 Haggard’s Con. Rep. 59. 
 
 as persons ? Qualitaspersonam sicut umbra sequitur, 
 is a rule found in all the principal writers on this 
 branch of the law. ‘ Personal capacity or incapacity, 
 attached to a party by the law of his domicil, is deem¬ 
 ed to exist every where, so long as his domicil re¬ 
 mains unchanged, even in relation to transactions in 
 a foreign country, where they might otherwise be 
 obligatory.’ (4) ‘ We always import,’ (says L. Ellen- 
 
 borough in the case of Potter vs. Brown.) (5) ‘ togeth¬ 
 er with their persons, the existing relations of for¬ 
 eigners as between themselves, according to the laws 
 of their respective countries, except indeed where 
 those laws clash with the rights of our own subjects 
 here.’ 
 
 If we consider the rules applicable to slaves as the 
 property of foreigners, we shall find them to be equal¬ 
 ly decisive. 
 
 Pothier, after remarking that moveable property 
 has no locality, adds that * all things, which have no 
 locality, follow the person of the owner, and are con¬ 
 sequently governed by the law, or custom which gov¬ 
 erns his person, that is to say by the law of the place 
 of his domicil.’ And I refer your Honors to the work 
 which I have already so often cited, and which eve¬ 
 ry one must cite who touches upon a subject which 
 the distinguished author has treated with such learn¬ 
 ing and ability, Story’s Conflict of Laws, (6) where 
 numerous authorities on this rule are collected. I 
 submit to your Honors that this rule has a more ex¬ 
 tensive application, than merely to regulate the forms 
 of transfer, or the order of succession to personal prop¬ 
 erty. Thus to limit its effect, would he to stop far 
 short of its real meaning, and I may add far short of 
 the effect which it has been allowed to have. It 
 means, that a right to a moveable thing, acquired in 
 one country under its laws, ought not to be, and is not 
 divested by removing that thing into another country. 
 And here again I must refer the Court to the Com¬ 
 mentaries on the Conflict of Laws. (7) There is 
 another view which may be taken of this principle, 
 by which its justice and expediency will clearly ap¬ 
 pear. ‘ Even the properly of individuals,’says Vat- 
 tel (8) ‘ is, in the aggregate, to be considered as the 
 property of the nation, in respect to oilier states. It 
 in some sort really belongs to her, from the right she 
 has over the property of her citizens, because it con¬ 
 stitutes a part of the sum total of her riches, and aug¬ 
 ments her power. She is interested in that property 
 by herobligation to protect all her citizens. In short 
 it cannot be otherwise, since nations act and treat to- 
 
 (4) Story’s Conflict of Laws, 64. 
 
 (5) 5 East R. 130. 
 
 (6) p. 209, 312, 213. 
 
 (7) p. 334, 335, 336. 
 
 (8) p. 16S. 
 
7 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 gether as bodies, in their quality of political societies, 
 and are considered as so many moral persons. All 
 those who form a society, a nation, being considered 
 by foreign nations as constituting one whole, one sin¬ 
 gle person—all their wealth together can only be con¬ 
 sidered as the wealth o( that same person. Its do¬ 
 mestic relations make no change in its rights with re¬ 
 spect to foreigners, nor in the manner in which they 
 ought to consider the aggregate of its property, in 
 what way soever it is possessed.’ He then goes on, 
 to deduce from this principle, certain rules of the law 
 of nations, which are fairly deducible from it, and 
 are now well settled, and among others the following. 
 * The property of an individual does not cease to be¬ 
 long to him, on account of his being in a foreign coun¬ 
 try ; it still constitutes a part of the aggregate wealth 
 of his nation. Any power therefore, which the lord 
 of the territory might claim over the property of a 
 foreigner, would be equally derogatory to the rights 
 of the individual owner and to those of the nation, of 
 which he is a member.’ The rule on which we re¬ 
 ly, is therefore, deducible from this great principle of 
 the law of nations, and I need not say, that the ap¬ 
 plication of this principle to the citizen of one of our 
 sister states is, to say the least, quite as just and poli¬ 
 tic, as to the citizen of a foreign country. 
 
 I submit to the Court then, that by the general 
 rules of international law, whether we consider this 
 slave as a person, or as property, the rights of the 
 master, acquired under the law of the domicil, are to 
 be recognised and preserved, unless there is some¬ 
 thing in this case, which excepts it out of those gen¬ 
 eral rules. I proceed therefore to enquire, whether 
 there is any exception to these rules, applicable to 
 this case. 
 
 There are two well settled exceptions, and only 
 two, that I have been able to discover. The foreign 
 law is not allowed any effect: 
 
 I. When it would work injury to the state, or its 
 citizens. 
 
 II. When the law is in itself immoral. (1) 
 
 In the case of Greenwood vs. Curtis, (2) Ch. Jus. 
 Parsons states these exceptions in somewhat different 
 terms, though substantially there is rio difference. 
 He says there are two exceptions. ‘ One is when the 
 Commonwealth, or its citizens, may be injured by 
 giving effect to a foreign law. The second is, where 
 the giving effect to a foreign law would exhibit to 
 our own citizens, an example pernicious and detest¬ 
 able.’ 
 
 I shall endeavor to maintain that it would work no 
 
 injury to the state or its citizens, to give to the law of 
 Louisiana the qualified and limited effect which we 
 ask for in this case, and secondly that slavery is not 
 immoral. Before I proceed to speak to these points, 
 I feel obliged to anticipate an objection, which will 
 undoubtedly be pressed by the learned counsel for the 
 petitioner, and which certainly comes from high au¬ 
 thority. 
 
 ‘ The difficulty of adopting the relation, without 
 adopting it in all its consequences, is indeed extreme ; 
 and yet, many of those consequences are absolutely 
 contrary to the municipal law of England. We have 
 no authority to regulate the conditions, in which law 
 shall operate.’—Lord Mansfield, in the case of Som- 
 mersett. 
 
 It will be urged, that though we claim to exercise 
 only a qualified and limited right over the slave, viz 
 the right to remove him from the state, yet, if this ii 
 allowed, all the rights of the master must be allowed 
 That the same foreign law, which gives the master a 
 right to remove the slave from place to place, gives 
 him a right to his labor, and to compel him to labor; 
 and that if this foreign law is recognised at all, full 
 effect must be given to it, and thus slavery will be 
 introduced into the Commonwealth. 
 
 To this I answer: 
 
 1st. There is no practical difficulty , in giving this 
 qualified effect to the Law of Louisiana. The Con¬ 
 stitution of the United States has settled this ques¬ 
 tion. That provides for and secures to the master the 
 exercise of his right, to the precise extent claimed in 
 this case. 
 
 2d. Neither is there any theoretical difficulty. Not 
 to refer again to the Constitution, which being posi¬ 
 tive law, may be supposed to eut a theoretical knot, I 
 think l can show that English Judges, since Lord 
 Mansfield’s day, have not found this difficulty insur¬ 
 mountable, even in regard to this very relation of sla¬ 
 very. 
 
 Several cases have occurred in the High Court of 
 Admiralty in England, where ships of other nations, 
 engaged in the slave trade, have been captured by 
 British cruisers, and brought in for condemnation. In 
 the cases where the slave trade was forbidden by the 
 laws of the nation, to which the vessel belonged, they 
 were condemned. In other cases, where the slave 
 trade was lawful by the laws of the nation to which 
 the vessel belonged, the vessel and slaves were re¬ 
 stored to their owners. The court looked to the for¬ 
 eign law. If, by that law, the owners of the vessels 
 could acquire a property in the slaves, that property 
 was respected and the slaves were given up. Now 
 here the relation between master and slave, which 
 existed by the foreign law, was recognised by the 
 English law, and effect given to it, so far as to allow 
 
 (1) Story’s Con. Laws 96. 2 Kent’s Com. 39. 
 
 f2) 6 Mass. Rep. 378. 
 
8 
 
 Benjamin Ii. Curtis, Esq., for the Respondent. 
 
 the owner to remove tliem.(l) So in lire case of Mad- 
 razo v. Willes, (2) a British cruiser captured a Span¬ 
 ish slave ship, and the Court of Kings Bench allowed 
 the owner to recover of the Captain £30,000 for the 
 loss of his slaves. Here also was a strong recogni¬ 
 tion of the relation between master and slave, and 
 an important effect given to that relation. But I sup¬ 
 pose that the judges who decided those cases would 
 have been greatly surprised, if they had been told 
 that, by recognizing the right of the master over his 
 slave to any extent, they had in effect recognized it 
 for all intents and purposes whatsoever ; and that they 
 had thereby introduced slavery into England. I re¬ 
 fer the court also to the case Emerson v. Howland,(3) 
 for a decision made in this Commonwealth, founded 
 upon the same principles as the case in 3 Barn, and 
 Aid. 
 
 There is a decision of Chief Justice Reed of Lower 
 Canada, (4) which throws light on this point. The 
 case was as follows : A citizen of the State of Ver¬ 
 mont committed a larceny there, and fled into Caua- 
 da. The executive of the State of Vermont request¬ 
 ed the Governor of that province to deliver up the 
 fugitive. The Governor caused the thief to be ar¬ 
 rested, and thereupon a habeas corpus was sued out, 
 and the man was brought before the Chief Justice. 
 In a very learned and elaborate opinion, the Judge de¬ 
 cided that it was a proper exercise of the executive 
 power, not only consistent with tho laws of nations, 
 but required by national comity, to deliver up the 
 delinquent to the authorities of the State of Vermont. 
 Now why did not the Chief Justice say, that the 
 crime committed by the thief being an infringement 
 of a foreign law, it that law was recognised at all, it 
 must be recognised to its full extent; if any effect 
 should be given to it, full effect must be given to it. 
 That the State of Vermont had the same right to try, 
 condemn and punish the thief that they had to re¬ 
 move him ; and as the Governor of Canada could 
 never permit the State of Vermont to exercise all 
 these rights within his territory, he could not recog¬ 
 nise their light at all, nor permit the least interfer¬ 
 ence with the liberty of the fugitive, while on the 
 soil of Canada. I am unable to perceive why such a 
 course of reasoning would not have been equally ap¬ 
 plicable to that case, as to the ease at bar. And the 
 answer there, as here, is, that although the rights 
 arising under a foreign law, and properly exercisable 
 
 (1) The Amedie, I Acton’s R. 240. 
 Dodson 80. The Diana, 1 Dodson’s 
 Louis, 2 Dodson’s R. 238. 
 
 Fortuna, 1 
 R. 93. The 
 
 (2) 3 Barnwell and Alderson, 338. 
 
 (3) 1 Mason’s R. 45. 
 
 (4) Reported in 1 American Jurist, 297. 
 
 on such foreign territory, cannot, consistently with 
 our domestic policy, be exercised on our own territo¬ 
 ry, yet that is no reason why we should not allow the 
 foreigner to remove the subject of those rights to his 
 own territory, there to do what his law requires or 
 allows. 
 
 The question in both cases is, whether national 
 comity requires the nation where the subject of the 
 rights claimed is, to allow such subject to be remov¬ 
 ed, and it is not at all necessary to give effect to any 
 rights or relations, other than the right of removal, 
 nor even to consider or take notice of any other rights 
 or relations, except so far as they constitute or destroy 
 a claim on the comity of the nation, to permit the re¬ 
 moval. I submit to your Honors also, that there is no 
 difficulty in holding that a judicial tribunal may al¬ 
 low a qualified effect to a foreign law. If there are 
 considerations which forbid (he court from allowing a 
 foreign law to produce all its usual and natural effects 
 on the relations of foreigners who come within our 
 territory, but, at the same time, it will work no inju¬ 
 ry to the Commonwealth or its citizens, and will ex¬ 
 hibit no bad example, to allow some of those effects j 
 it the doing so will, at the same time, promote har¬ 
 mony and good feeling, where it is extremely desir¬ 
 able to promote it, encourage frequent intercourse, 
 and soften prejudices by increasing acquaintance, and 
 tend to peace and union and good will, why should 
 not the foreign law be allowed to have this useful and 
 just operation within our territory ? Useful, because 
 it produces only good effects,—just, because it pre¬ 
 serves relations acquired at home and brought here 
 with the expectation of preserving them, and which 
 are in no way injurious to ourselves. Such I under¬ 
 stand to be the opinion of Mr. Justice Story. (5) « A 
 State may recognise, and modify and qualify some 
 foreign laws ; it may enlarge or give universal effect 
 to others.’ I have already shown, by citations from 
 this book, that it is the province of the judicial pow¬ 
 er, to declare what effect a foreign law shall have, 
 and of course it follows that, when the learned au¬ 
 thor says a state may modify and qualify some foreign 
 laws, he means that the judicial power of the state 
 may do this. 
 
 I have endeavored to prove, that the qualified and 
 limited right w hich we have claimed in this case, 
 may be properly claimed and allowed, without giving 
 full effect to the foreign law concerning master and 
 slave ; and I will now attempt to show, that to per¬ 
 mit such an exercise of the right of the master will 
 work no injury to the state or its citizens. 
 
 I. It will work no injury to the state, by violating- 
 
 (o) Confl. of Laws, 24. 
 
9 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 any public law of the 9tate. The only law in our 
 Statute Book, applicable to the subject of slavery, is 
 the law against kidnapping. (1) It provides that no 
 person shall ‘ without lawful authority, forcibly or 
 secretly coniine or imprison any other person within 
 this state, or forcibly carry or send any such person 
 out of this state,’ &c. It does not define the ‘ lawful 
 authority ; ’ it leaves that as it found it. In short, it 
 provides a penalty for an offence, the gist of which, 
 depends on the Common Law ; and to say that the 
 Statute applies to this case, is the same thing as to 
 say, that the master has no ‘ lawful authority ’ to con¬ 
 fine this slave ; which is the very question to be de¬ 
 cided. 
 
 II. It will work no direct injury to the citizens of 
 this state, for it has no direct effect on its citizens. It 
 respects only strangers. 
 
 III. I am aware that these two divisions by no 
 means dispose of all, or even of the principal difficul¬ 
 ties. A state may be injured as vitally by infringe¬ 
 ments upon its public policy, as by breaches of its 
 laws, and I shall endeavor to show that it is consist¬ 
 ent with the public policy of Massachusetts, to per¬ 
 mit this qualified and limited exercise of the right of 
 the master. I know that this is a wide field; that it 
 involves considerations so broad and deep, that I can¬ 
 not hope to reach or grasp them ; but while I feel 
 confident that the court will perceive and give due 
 weight to all these considerations, I also feel it to be 
 my duty to suggest to your Honors such as have oc¬ 
 curred to my own mind. And first, 1 beg your Hon¬ 
 ors to bear in mind, that we are considering the poli¬ 
 cy of Massachusetts towards citizens of other states, 
 .and not towards her own citizens. Laws and institu¬ 
 tions may exist in other states, which are inconsist¬ 
 ent with our own policy ; we cannot therefore allow 
 our own citizens to create such institutions in our ter¬ 
 ritory; we cannot permit foreigners to import them 
 here; but, at the same time, it may be perfectly con¬ 
 sistent with our policy not only to recognise the va¬ 
 lidity and propriety of those institutions, in the states 
 where they exist, but even to interfere actively, to 
 enable the citizens of those states to enjoy those in¬ 
 stitutions at home. To illustrate my meaning, sup¬ 
 pose the province of Canada should abolish capital 
 punishment, upon the ground that it was immoral, in¬ 
 expedient, and contrary to their public policy, and a 
 murderer should escape from Vermont into that prov¬ 
 ince. The public policy of Canada in respect to cap¬ 
 ital punishment, within its own territory, would 
 hardly furnish a sufficient reason for refusing to de¬ 
 liver up the murderer to the authorities of Vermont. 
 
 There is another principle, which seems to me im- 
 
 (1) Rev. Stats. Ch. 125, Sec. 20. 
 
 portant to be kept in view. In considering whether 
 a stranger should be allowed to exercise this right, 
 it is of the utmost importance to keep in view the 
 relations between the {Stale of which such stranger 
 is a citizen, and our own State. A very little reflec¬ 
 tion will convince the courtof the truth of this. We 
 close our courts of justice to an alien enemy. We 
 open them to an alien friend, for personal actions. 
 We open them to the citizens of our sister States, in 
 all actions. The very phrase which is made use of 
 to express the foundation on which the admission of 
 all foreign laws rests, illustrates this truth. Nation¬ 
 al comity is that foundation. Now what may be a 
 proper comity in one case, may by virtue of a trea¬ 
 ty be turned into a right in another, and may be 
 wholly done away in a third, either by a want of due 
 comity on the other side, or in some other way. In 
 short, it is perfectly clear, that there can be no gen¬ 
 eral rule, binding in all cases, and in regard to the 
 citizens or subjects of all foreign States, even in re¬ 
 spect to the exercise of the same light, or the exist¬ 
 ence of the same relation. Our relations to one for¬ 
 eign State may render it perfectly consistent with 
 our public policy, to permit a eitizen of that partic¬ 
 ular State to do an act within our territory, which 
 our public policy towards another foreign State would 
 require us to forbid its citizens from doing. What 
 then are the relations which we sustain to the State 
 of Louisiana, which ought to affect our public poli¬ 
 cy towards her citizens ? She is not a foreign State. 
 We are bound up with her, by the constitution, into 
 a Union, upon the preservation of which no man 
 doubts that our own peace and welfare depend.— 
 Other nations may cherish friendly relations, and 
 endeavor to promote frequent intercourse, from a 
 fear of foreign war, or a desire of commercial pros¬ 
 perity. But to us these relalims and this inter¬ 
 course have a value and importance, which are in¬ 
 estimable. They are the grounds of safety for our 
 domestic peace, and the happy institutions under 
 which we live. Thirteen States of this Union are 
 slaveholding States. Negro slavery has become in¬ 
 corporated into all their institutions. It is infused 
 into their agriculture, their commerce, their me¬ 
 chanical arts, their domestic relations. Their laws 
 and policy bear marks of it, in every line. To 
 secure its advantages, to lessen the evils which are 
 inseparable from it, and to avert the overwhelming 
 destruction which it threatens, occupies the thoughts 
 and engages the anxious solicitude of almost every 
 man in those States. And great as is the import¬ 
 ance of this institution to them, in every point of 
 view, there can be no doubt that it occupies in their 
 minds quite as prominent a place as it deserves. 
 
 Your Honors will not forget that we are dealing 
 
 2 
 
10 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 with this institution thus existingin oursister States, 
 anil thus deemed to be all important, and being in 
 fact of vast importance to those States;—that we 
 are considering, whether a citizen of one of those 
 States, whom our interest as well as our inclination 
 should lead us to welcome here, can be allowed, con¬ 
 sistently with our public policy, to exercise a right 
 growing out of this important institution, when the 
 exercise of that right violates no public law of the 
 Stale, and has no direct effect upon any ci'.izen of 
 the commonwealth. 
 
 I cannot but think, that the constitution itself 
 furnishes a guide, and a safe guide, in the question. 
 I say a guide, and not a controlling authority, for I 
 take it to be clearly settled, that the constitution ap¬ 
 plies only to the case of fugitive slaves. But when 
 we find that the States, in the solemn compact which 
 they made with each other, provided for the exercise 
 of this right in certain cases, it gives us some rea¬ 
 son to believe that it is consistent with the public 
 policy of Massachusetts, to protect the right of the 
 master to that extent, at least. I know it will be urir- 
 ed, that the nou-slaveholding States came into this 
 measure unwillingly, and this for the very reason 
 that it was contrary to their policy; but unless it was 
 on the whole consistent with their policy, it is clear 
 they would never have come into it at all. Massa¬ 
 chusetts undoubtedly assented to this article in the 
 constitution, for different reasons from those which 
 operated on South Carolina, but her reasons were 
 sufficient; she assented to it of her own free will, 
 and it was as much her free act, as it was the liee 
 act of any State, which came into the Union. It 
 will be urged also, by the learned counsel for the 
 petitioner, that although we have assented to the 
 exercise of this right in one class of cases, yet the 
 fact, that this limitation exists, is an argument to 
 prove that the exercise of the right, in “any other 
 case, would be contrary to our policy. That if it 
 was not contrary to the policy of the non-slavehold¬ 
 ing States, to permit the master to exercise the 
 right which we claim in this case, within their ter¬ 
 ritory, we should find a provision adapted to this 
 case in the constitution. To this argument there 
 are several answers. In the first place, the cons'i- 
 tution provides for that class of cases which was 
 most important. It furnishes a remedy for an evil 
 which had been deeply felt by the southern Slates 
 during the existence of the confederation. It i s a ’ 
 class of cases, too, which requires the active inter - 
 position of the laic, and the application of the civil 
 power in aid of the master’s right. It is by no means 
 a necessary inference, that all other cases whatso¬ 
 ever were disregarded, or deemed to be without rem¬ 
 edy. The slave States having procured the inser¬ 
 
 tion of this provision, might be willing to leave oth¬ 
 er cases to the voluntary comity of the non-slave¬ 
 holding States. On the other hand, the non-slave- 
 holding States, though they might be unwilling to 
 be bound through all time, and amidst all changes, 
 to afford the aid of their civil power to enforce any 
 right of the master in their territories, might be quite 
 willing to accord as a favor and as a matter of com¬ 
 ity, even more than they were willing to surrender 
 as a matter of right. Does not the course of legis¬ 
 lation in some of the States prove this ? Very soon 
 after the adoption of the constitution, four non-slave¬ 
 holding States passed laws, securing to citizens of 
 slave Stales, who came within their territories as 
 travellers, and brought their slaves with them, a 
 right to remove those slaves from the State, and re¬ 
 turn them to their domicile.(1) In other words, the 
 legislatures of those States secured to the master 
 the very right which we claim in this case. It may 
 be argued, perhaps, that the very existence of these 
 statutes proves that some action of the legislature is 
 necessary, and that this court is not competent to do 
 what those legislatures have done; but if the court 
 will examine those statutes, they will perceive why 
 some action of the legislature was necessary there, 
 and that the same reason does not exist in this com¬ 
 monwealth. In those law's, the legislatures forbid, 
 under a penalty, the introduction of slaves into their 
 several States. Feeling the force of the objection, 
 that they bad thus cut off almost entirely the access 
 ot citizens from the southern Stales, and that so to 
 shut out those persons would be impolitic and un¬ 
 just, they go on to make an exception, in favor of 
 travellers who come into their respective States, for 
 temporary purposes. But in Massachusetts, there 
 is no law forbidding the master to bring his slave 
 here, the legislature has never acted at all on the 
 subject, and of course it has never become necessa¬ 
 ry to introduce any such exception. 
 
 I cannot but believe that these laws of Pennsyl¬ 
 vania, New York, New Jersey, and Rhode Island, 
 have an important bearing on this question. The 
 legislatures of those States are the legitimate and 
 highest authority, in regard to their public policy. 
 
 " hat they have declared on this subject, must be 
 deemed to be true; and where they have passed a 
 law securing to the master the right which we claim 
 in this case, and have continued the law to the pre¬ 
 sent hour, we are not at liberty to suppose that it 
 is contrary to their public policy, that the master 
 should exercise this right within their territory. I 
 
 J, f 1 - N Y. G-->7. Laws of It. Island 
 , 1 «>'don s Dig. of Penn. Laws (1. Laws of N. 
 
 J . (. » / J. 
 
11 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 respectfully ask the court to consider what differ¬ 
 ence there is between the policy of Pennsylvania, 
 New York, Rhode Island, and New Jersey, and the 
 poliey of Massachusetts, on the subject of slavery. 
 
 I have gone through with such suggestions, in 
 respect to this question of public policy, as have oc¬ 
 curred to me, and I leave it in the hands of the 
 court. 
 
 I shall now attempt to prove that slavery is not 
 immoral, and that to allow the master to exercise 
 this right will not exhibit to our citizens an exam¬ 
 ple pernicious and detestable. 1 wish not to be un¬ 
 derstood to advocate slavery, as consistent with nat¬ 
 ural right. I do not believe it to be consistent with 
 natural right. If this cause, or any cause required 
 me to maintain that slavery was not a violation of 
 the law of nature, I would abandon it. But this 
 cause does not require its advocates to do this. The 
 terms ' moral ’ and 1 2 3 immoral ’ have very wide and 
 various meanings, and of course it is necessary to 
 settle the meaning of this word, before we look fur¬ 
 ther. I take it to be perfectly clear, that the stand¬ 
 ard of morality by which courts of justice are to be 
 guided, is that which the law prescribes. Your 
 Honors’ opinion as men, or as moralists, have no 
 bearing on the question. Your Honors are to de¬ 
 clare what the law deems moral or immoral. Such 
 was the opinion of Sir William Scott.(1) Such also 
 was the opinion of Ch. Jus. Marshall: 
 
 ‘ Whatsoever might be the answer of a moralist to 
 the question, a jurist must search for its solution in 
 ■those principles of action which are sanctioned by 
 the usages, the national acts, and the general assent 
 of that portion of the world, of which he considers 
 himself as a part, and to whose law the appeal is 
 made.’ (2) 
 
 The question therefore is, whether, when measur¬ 
 ed by the standard of our law, slavery is immoral ? 
 Upon this question, I again refer the court to the 
 case in 3. B. & Aid 353, where the court of King’s 
 Bench allowed the owner of slaves to recover 30,Q00Z. 
 damages, for the conversion of his property ; and 
 bearing in mind the well-settled principle, that the 
 common law requires its suitors to come into court 
 with clean hands, and that no man can there obtain 
 damages, who makes title through an immoral act, 
 
 I ask your Honors to consider, whether this decis¬ 
 ion does not prove that slavery, by the law of Eng¬ 
 land, is notan immoral institution? The case of 
 Emerson v. Howland(3) is to the same point. That 
 was an action on a contract based on the right of 
 
 (1) 2 Dodson’s R. 249. 
 
 (2) Whea. R. 121. 
 
 (3) 1 Mason R. 45. 
 
 property in a slave. If the eminent Judge who de¬ 
 cided that case had deemed slavery an immoral basis, 
 on which to rest a contract, he would never have 
 allowed it to be maintained. But, whatsoever may 
 be the law of England on this subject, by the law of 
 this commonwealth, slavery is not immoral. By the 
 supreme law of this commonwealth, slavery is not 
 only recognized as a valid institution, but to a certain 
 extent is incorporated into our own law. Ch. Jus. 
 Parker (4) says, ‘ The words of the constitution were 
 used out of delicacy, so as not to offend some in the 
 convention, whose feelings were abhorrent to slavery ; 
 but we there entered into an agreement that slaves 
 should be considered as property .’ This court will 
 hardly declare in this case, that slavery is immoral, 
 and that to allow the master to exercise the right 
 claimed would exhibit to our citizens an example per¬ 
 nicious and detestable, when, before you rise from 
 your seats, you may be called upon, by the master of 
 a fugitive slave, to grant a certificate, under the con¬ 
 stitution, which will put the whole force of the com¬ 
 monwealth at his disposal, to remove his slave from 
 our territory. 
 
 If I have succeeded in convincing the court of the 
 truth of the points which I have made, I have shown 
 that this case is within the general principles of the 
 law of nations; and that it does not come within any 
 exception to those principles, and of course is to be 
 governed by them. I now ask the attention of the 
 court to some authorities, which bear more directly on 
 the question before you. 
 
 The leading case on this subject is the case of the 
 negro Sommersett.(5) In many of its leading features, 
 it resembles the case at bar. I shall not deny that 
 Sommersett’s case settled the law of England. How¬ 
 ever contrary it may have been to the opinions of em¬ 
 inent common lawyers of preceding times, and to the 
 general current of opinion and practice at that day, it 
 has been acquiesced in, applauded, confirmed, till it 
 would be folly to deny that the present common law 
 of England, in regard to slavery, is there to be found. 
 But I think, nevertheless, that much instruction con¬ 
 cerning this great case, and much valuable reasoning 
 upon the subject of it, may be found in the elaborate 
 opinion of Lord Stowell, in the matter of the slave 
 Grace, to which I have already referred. And, though 
 it may not convince us that Sommersett’s case was 
 decided erroneously, it will probably prevent us from 
 being misled, by the highly figurative and declama¬ 
 tory language, which was indulged in by some of the 
 eminent men concerned in that cause. If the reports 
 of the judgment of Lord Mansfield are even tolerably 
 
 (4) 2 Pick. R. 19. Ct-t-%-^ f ’ 
 
 (5) 20 Howell’s State Trials, 20. 
 
12 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 lull and correct, it is much to he regretted that we 
 we are not permitted to see a little more fully, the 
 grounds on which the court proceeded, and the train 
 ol reasoning by which they were brought to the de¬ 
 cision which they made. The judgment, as report¬ 
 ed, is singularly deficient in this respect; and feeling 
 as we do, that it is necessary for us to distinguish the 
 case at bar from Sommersett’s case, we are not a lit¬ 
 tle embarrassed, by our ignorance of these grounds 
 and reasons. I have already had occasion to notice 
 one expression made use ol by his Lordship, in that 
 case, and 1 have attempted to show, that it need not 
 he an insurmountable obstacle here. I will now call 
 the attention of the court to two other principles, being 
 the only principles which I have been able to discov¬ 
 er in the opinion. 
 
 < Contract for sale of a slave is good here ; the sale 
 of a slave is a matter to which the law properly and 
 readily attaches, and will maintain the price accord¬ 
 ing to the agreement. But here, the person ol the 
 slave himself is immediately the object of the enqui¬ 
 ry, which makes a very material difference.’ With 
 all submission, I must confess, that I am unable to 
 perceive the distinction. What is the subject of a 
 contract for the sale of a slave ? Is it not the person 
 ol the slave ? And what is the subject of enquiry, in 
 an action on such contract ? Is it not whether the 
 vendor sold to the purchaser the person of the slave ? 
 What was the subject of enquiry, in the action brought 
 by the owner of slaves against the captain of the Brit- 
 
 this is undoubtedly true. We must find in this case 
 some law, which will permit this master to remove 
 the slave, and it must be Massachusetts law too; but 
 the law of Massachusetts, which we expect to find, is 
 that principle which declares that the law of the dom¬ 
 icil shall govern, as to the relations between foreign¬ 
 ers, except in so far as it contradicts our own policy 
 and laws. 
 
 If by positive law is meant a law of the State where 
 the question arises, without relerence to the law ol 
 the domicil, and that the law of the domicil cannot be, 
 in any degree, regarded, even where the question 
 arises between strangers, then we deny the position. 
 We say it is not true even in England, and that the 
 cases in which the English courts have recognized the 
 foreigner’s right of property in slaves, and given him 
 damages for a violation of that right of property, prove 
 that it is not the law there. 
 
 But the grounds, on which we expect to distinguish 
 this case from Sommersett’s case are, that the owner 
 of Sommersett was a British subject, resident in Vir¬ 
 ginia, then a British colony. That the question of 
 national comity did not arise in that case. That none 
 of the considerations, which grow out of our close and 
 peculiar relations with the State of Louisiana, there 
 existed. That the public policy of England, in re¬ 
 spect to her dependent colonies, was a very different 
 thing from the public policy of Massachusetts, in re¬ 
 spect to her sister States. That a citizen of the State 
 ofLouisiana has a different standing in our courts, at 
 
 ish cruiser, and reported in 3 B. & Aid.? Was it this day, from the standing of a 1 irginian in the King’s 
 not whether the plaintiff owned the persons of the Bench in 1772, just before the breaking out of the 
 slaves, and the defendant destroyed his property ?— » revolutionary war. In short, that Sommersett’s case 
 
 How then can it be said, that the person of the slave 
 comes in question, in the one case, more than in the 
 other ? 
 
 * The state of 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 again, ‘ Sla¬ 
 very is so odious, that nothing can be suffered to sup¬ 
 port it but positive law.’ Now if by positive law is 
 meant a law enacted by the legislative power of the 
 country, this assertion is not true in point of fact; for 
 in all modern States, I believe, with the exception of 
 some of the colonies of Spain, slavery has been intro¬ 
 duced by custom, and without any action of the legis¬ 
 lative power. Negro slaves were introduced and 
 held, like merchandize, or any species of property, 
 because slavery was not forbidden by law, and not 
 because it was required or sanctioned by law. 
 
 If by positive law, it is meant that there must be 
 some law of the State, which at least permits the 
 master to exercise acts of ownership over the slave. 
 
 was decided by an English court, on considerations 
 prbper to that country ;—that this case is to be decid¬ 
 ed by a Massachusetts court, upon reasons proper to 
 ourse 1 vc*. ^And ^^J^eve succeeded in convincing 
 the court, th« it J^^Mfistent with the public policy 
 of Massachusetts, tff"permit the master to exercise the 
 right claimed in this case, I think the court can feel 
 no difficulty in distinguishing this case from Sommer¬ 
 sett’s case. I know not how I can better illustrate 
 my meaning, than by supposing a case. Suppose that 
 slavery had existed in Scotland, before the union ; that 
 it had become incorporated into all her institutions, 
 civil, political and domestic; that it was not only of 
 great importance to the Scottish nation, but one in 
 which they felt an intense interest, which transcend¬ 
 ed even its real importance ;—that the existence of 
 this institution was one of the chief obstacles to a 
 union of the two kingdoms ; that its protection was 
 provided for and guaranteed, and the faith of the Eng¬ 
 lish nation pledged thereto, by the act of union ; that 
 it was made the basis of taxation and representation. 
 
13 
 
 Benjamin R. Curtis, Esq., for the Respondent. 
 
 in the imperial parliament. And then suppose that a 
 Scottish gentleman, travelling into England with his 
 slave, and restraining him for the purpose of carrying 
 him back to Scotland, that slave had been brought be¬ 
 fore Lord Mansfield, on a writ of habeas corpus. Do 
 your Honors believe that he would have been dis¬ 
 missed from the custody of his master, on the ground 
 that slavery was so odious, that the master should not 
 be permitted to carry his slave home, because there 
 was no positive law of parliament providing for the 
 case ? Should we not have heard something of the 
 act of union, of the ultimate relations between the two 
 kingdoms ; of the great importance of the institution 
 to the sister kingdom ; of the state of feeling there on 
 the subject; of the necessity to preserve amicable 
 feelings, and encourage intercourse between the peo¬ 
 ple of the different sides of the border ? I submit to 
 your Honors, that we should, and that the result 
 would have been different from the result of Sommer- 
 sett’s case. 
 
 I now ask your Honors’ attention to some authori¬ 
 ties, in support of our view of this case. 
 
 The case of the Aurora, in 10 Wheaton, has alrea¬ 
 dy been-referred to. In that case, a Spanish slave 
 ship was captured on the coast of Africa, by a pirati¬ 
 cal vessel. The slaves were brought by the pirates 
 near the coast of the United States, probably with the 
 intention of smuggling them into some part of our 
 country. The vessel having them on board, was seiz¬ 
 ed by a public armed vessel of the U. S., and brought 
 in for adjudication. The Spanish owner claimed the 
 slaves, and they were restored to him by the court. 
 Now here was a case in which the slaves came law¬ 
 fully into the custody of the United States, and with¬ 
 out any improper intervention on the part of the pub¬ 
 lic armed vessel. The case seems to have been ex¬ 
 actly parallel with the case of a cargo of slaves, cast 
 upon our coast by a storm ; and yet the court inter¬ 
 fered actively, to restore them to their foreign owner. 
 
 A case was brought before Judge Morris, of Indi¬ 
 ana, in 1829, in regard to the slaves of one Sewall, by 
 habeas corpus , the return to which stated that Sew¬ 
 all was emigrating from Virginia to Missouri, with 
 his family and slaves, and that his route led him 
 through Indiana. But the evidence showed, that he 
 was going to settle in Illinois, and intended to run 
 his negroes into Missouri, for the purpose of selling 
 them. The decision turned, therefore, on the fact, 
 
 that the party had'abandoned his domicil, in a State 
 where he could hold slaves, and had not shown even 
 an intention of acquiring a new domicil, in another 
 such State ; but on the contrary, so far as his inten¬ 
 tion did appear, it was to settle in a non-slaveholding 
 State. The slaves were accordingly declared free; 
 but the Judge expressly intimates that his decision 
 would have been otherwise, if the domicil of the own¬ 
 er had continued to be in a slaveholding state. ‘By 
 the law of nature and of nations,'(see Vattel 160) and 
 the necessary and legal consequences resulting from 
 the civil and political relations subsisting between the 
 citizens, as well as the States of this federative re¬ 
 public, I have no doubt but the citizen of a slave 
 State has a right to pass, upon business or pleasure, 
 through any of the States, attended by his slaves, or 
 servants ; and while he retains the character and 
 rights of a citizen of a slave State, his right to reclaim 
 his slave would be unquestioned. An escape from 
 the attendance upon the person of his master, while 
 on a journey through a free State, should be consid¬ 
 ered as an escape from the State where the master 
 had a right of citizenship, and by the laws of which 
 the service of the slave was due. It is not necessary 
 forme to decide, whether an emigrant from one slave 
 State to another would have the right of reclaiming 
 his slaves, if they should escape from him while pass¬ 
 ing through our State, because that is not the case 
 now before me. * * * The emigrant from one 
 
 State to another, might be considered prospectively 
 as the citizen or resident of the State to which he was 
 removing; and should be protected in the enjoyment 
 of those rights he acquired in the State from which 
 he emigrated, and which are recognised and protect¬ 
 ed by the laws of the State to which he is going. But 
 this right, I conceive, cannot be derived from any pro¬ 
 vision of positive law.(l) 
 
 The case in 2 Marshall’s Ken. Rep., which has al¬ 
 ready been referred to, has an important bearing on 
 this case. I have not the book at hand, but your Hon¬ 
 ors will find, on referring to it, that it contains a strong 
 and distinct declaration of the opinion of the court, in 
 favor of the right claimed by the respondent in this 
 case. 
 
 These are the views entertained by the respond¬ 
 ent’s counsel, concerning this important and interest¬ 
 ing question. 
 
 (1) 3 Amer. Jurist, 406. 
 

 
 
 ' 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 I - 
 
 - 
 
 
 ■ 
 
 
 
 
ELLIS GRAY LORING, ESQ., FOR THE PETITIONER. 
 
 JiJay it please the Court: 
 
 I feel bound in justice to the petitioner, be* 
 fore proceeding to the principal points in contro¬ 
 versy in this case, to reply very briefly to one or 
 two suggestions, which were thrown out by the 
 counsel for the respondent, at the former hearing be¬ 
 fore Judge Wilde. And first, I would say that 
 this case has no connexion with any of the distracting 
 questions of the day. Its discussion may lead to re¬ 
 marks on the moral character of the institution of sla¬ 
 very, but not for the objects, nor in the spirit of a par¬ 
 ty. The promoter of this suit is not, to my knowl¬ 
 edge, a member of any society for the abolition of sla¬ 
 very. 
 
 The return to the writ shows that the mother of the 
 child is a slave in New Orleans, and something has 
 been said of the inhumanity of separating mother and 
 child. It is alleged, too, that a promise has been giv¬ 
 en to the mother that her child should be returned to 
 her. The necessity of this separation is undoubtedly 
 a painful feature of the present case. The responsi¬ 
 bility of it belongs, however, wholly to that odious 
 system, which is continually breaking up (he domes¬ 
 tic ties. It is slavery and not freedom that is separ¬ 
 ating mother and child. An inveterate, deep-rooted 
 abuse places every thing within its sphere in a false 
 position. Any attempt to rectify it, on either a gen¬ 
 eral or partial scale, produces incidental and tempo¬ 
 rary disorder. But this is no reason for standing still. 
 
 But is there really any inhumanity in making this 
 child a free citizen of Massachusetts ! Is it unkind¬ 
 ness to the child ? Surely not. If she were able to 
 form an intelligent wish, we are bound to presume 
 she would prefer freedom to slavery. Any other 
 supposition is a concession that the average chance 
 for happiness and usefulness here, is less than it would 
 be in slavery. Is it unkindiiess to the mother? Not 
 if she desires the true good ot her child. No doubt 
 she felt anxious that her daughter should be returned 
 to her. But her apprehension was of a very different 
 event from that we seek to bring about. The poor 
 ignorant slave did not contemplate th« possibility of 
 her child’s emancipation- Her dread was lest it might 
 be sUld on the way. When Judge Bushrod Washing- 
 
 3 
 
 on,* was censured, five years since, in Niles’ Regis¬ 
 ter, for his inhumanity in selling children belonging 
 to his plantation in Virginia, away from their parents 
 into the slavery of the far South, the learned Judge 
 in his public reply, addressed to a Baltimore Journal, 
 admits the fact charged upon him, but says, ‘ It is an 
 extraordinary circumstance that so much sensibility 
 should be (elt when similar occurrences take place, 
 in relation to this particular class ol people. I may 
 be permitted to add,’ he continues, ‘that I have nev¬ 
 er beard a sigh or a complaint from the parents ol the 
 two most valuable servants I ever owned, that their 
 sons had abandoned them and my service, and sought 
 new habitations in the JV'orthern states, where they 
 now arc ' That eminent judge would have found 
 the circumstance less ‘ extraordinary ’ if he had been 
 placed in a similar situation, or had reflected that to a 
 slave parent, her son’s escape into a land of freedom 
 may seem somewhat smaller occasion for a ‘sigh or 
 complaint,’ than his sale into a distant and still more 
 hopeless servitude. This child, if h eed, will be edu¬ 
 cated for usefulness and respectability. She will nev¬ 
 er want a friend, nor the means of improvement and 
 happiness. I am authorized to go further, and to say 
 that if the claimant of this child will manumit her ac¬ 
 cording to the laws of Louisiana, great as would be 
 the peril to which she would be exposed, a friendless 
 infant of six years old, in the midst ol a slave city, 
 that peril will be met, for the sake of placing her 
 again in her mother’s bosom. She shall be returned 
 to New Orieans. 
 
 A preliminary difficulty has been suggested by the 
 court. It is said to be doubtful to whom the custody 
 of the child can be committed, if she should be dis¬ 
 charged from the present detention. It might be 
 sufficient to reply that a decision of the court favora¬ 
 ble to the petitioner would be equivalent to pronounc¬ 
 ing the detention by the respondent wrongful. On 
 the chilli’s being discharged, the respondent would 
 have no better right to renew the detention, than to 
 continue it. His attempting to do so would be in con¬ 
 tempt of the court. Any other p erson whatever would 
 
 * [President of the American Colonization Society. 
 — Reporter .] 
 
14 
 
 Ellis Gray Lorirtg, Esq., For the Petitioner. 
 
 have a better right than he, or those for whom lie 
 claims. The child would in het be taken at once in¬ 
 to the protection and keeping of the petitioner, and no 
 practical difficulty would ensue. If, however, this 
 course should be supposed open to objection, two al¬ 
 ternatives present themselves. The court can cither 
 commit her to the Overseers of the Poor, who aie 
 bound to ‘ relieve, support and employ all poor per¬ 
 sons residing or found in their towns, having no law¬ 
 ful settlement within this state,’ (1) or the case may 
 stand continued, till letters of guardianship can issue 
 from the Probate Court. ‘ The Samaritan Asylum,’ a 
 well administered charity in this city, incorporated hy 
 the State for the relief of colored orphans, stands rea¬ 
 dy on her liberation, to receive the child from the 
 proper hands, and to give her suitable support and a 
 good education. 
 
 I have glanced at these matters, because I wished 
 to dispose of all minor points before coming to the 
 main question. To that question I now come. 
 
 It has been urged, then, by the counsel who has 
 prededed me, that the citizens ol the slave states of 
 this Union, visiting Massachusetts, are to be permit¬ 
 ted to bring their slaves with them, and to take them 
 away on their return. Thus involving the right of 
 exercising the relation of master and slave within this 
 Commonwealth. And this permission to foreign¬ 
 ers of a rieht not conceded to our own citizens is said 
 to be required of u? by the principles of ‘ the comity 
 of nations.’ My learned brother has contended 
 that this obligation arises from the general doctrines 
 of international law, and also from the peculiar rela¬ 
 tion existing between the members of the Union. Of 
 these in their order. 
 
 1. —And first, l would remark that comity is not to 
 be exercised in doubtful cases. An eminent Louisi¬ 
 ana judge has remarked (2) * That in the conflict of 
 Iaws.it must be olten a matter of doubt, which should 
 prevail, and that whenever that doubt does exist, the 
 court which decides will prefer the law of its own 
 country, to that of the stranger. 
 
 2. —Comity is practically founded on the consent of 
 nations and the need that is felt of reciprocal good offi- 
 ces. Now nothing is more certain than that no such 
 consent of nations prevails on this subject. Mr. Har¬ 
 grave asserts in his celebrated argument in Soinmer- 
 sett s case (3) and the assertion is fully sustain¬ 
 ed by authorities that most ot the European States 
 in which slavery is discountenanced have adopt¬ 
 ed a like policy < to that of England, in disregard¬ 
 ing the lex loci in the case of slaves,’ and in giving 
 ‘ immediate and entire liberty to them, when they 
 
 (1) Mass. Rev. Slat. 371. “ 
 
 (2) 17 Martin Rep. 596—Story’s Confl. 29 271 
 
 (3) 20 How. St, Trials 61, 
 
 are brought here from another country.’ And the 
 learned commentator on American law asserts(4) that 
 * there is no such thing as the admission of slaves, or 
 slavery, in the sense of the civil law, or ot the laws 
 and usages of the West Indies, either in England or 
 in any part of Europe.' 
 
 A recent transaction which has not yet found its 
 way into the reports of decisions, but which has occa¬ 
 sioned too much remark not to be immediately recall¬ 
 ed, will illustrate the policy ot Great Britain on 
 this subject. About a year since, a vessel belonging, 
 
 I believe, to the regular line of Franklin & Armfield, 
 slave traders in the District ot Columbia, was on its 
 way to Charleston in South Caroliaa, with its cargo 
 of slaves. The vessel was, by stress of weather,driv¬ 
 en into the Island of Bermuda. Immediately on her 
 arrival the Chief Justice ot the Island brought up the 
 slaves by habeas corpus, and freed every one of them. 
 The loss to the American owner was of seventy slaves, 
 probably valued at fifty thousand dollars. Here is an 
 extreme case, and yet no remonstrance has followed 
 from the owners or from our government. It has been 
 tacitly admitted that the well-settled policy of Eng¬ 
 land in regard to slavery would make remonstrance 
 useless. If any other species of property had been in 
 question, we should have heard not merely of comity, 
 but of justice and national honor. But the Bermuda 
 case is ‘ a delicate subject,’ and our government are 
 wisely silent on it. 
 
 There is then no such consent ol nations on the sub¬ 
 ject of slavery, as must form the basis of comity, if 
 the question be considered as between foreign states. 
 In the next place there is no room here for reciproci¬ 
 ty. We have no slaves in Massachusetts in regard to 
 whom we can ask the exercise of the same comity 
 which is claimed ol us for the South. Nay,the comity 
 which is due to freemen is not extended to us by the 
 slaveholding states. Not only is it not extended to us 
 in fact, but it is not recognized as due in their statute 
 books. Throughout the slave states color furnishes a 
 presumption of slavery, and a free colored citizen of 
 Massachusetts, if found at the South, may be called 
 on to prove affirmatively his freedom or be sold into 
 slavery. Still more—in direct violation of the consti¬ 
 tutional provision guaranteeing to the citizens of each 
 state ‘ all privileges and immunities of citizens in the 
 several states,’ colored citizens of the North, seamen 
 or others, are forbidden by law (5) from entering 
 many ol the Southern ports of this Union, on peril of 
 being ‘ confined in jail,’ till the departure of the ves¬ 
 sel in which they arrived ;—the captain to pay the jail 
 expenses, under the penalty of one thousand dollars 
 fine, and not less than six months imprisonment.— 
 
 (4) 2 Kent Gora. 203, 1st Ed. 
 
 (3) Laws of S. C. 1S23 eh. 20 — Laws of Georgia 
 $29. elf. 6$ 
 
Ellis Gray Loring, Esq ., fur the Petitioner. 
 
 15 
 
 Many Southern prisons are, I doubt not, at this mo¬ 
 ment, full of tree persons of color, imprisoned under 
 unjust laws like these I refer the court, for an 
 exposition of this practice under the oppressive law I 
 have cited, to the * Memorial of forty-two masters of 
 vessels lying in the port of Charleston, S. C.’ present¬ 
 ed to Congress Feb. 19, 1823. I have referred to 
 these laws and usages, only as specimens of the whole¬ 
 sale outrage and injustice to which our own citizens 
 are exposed, by law, in those parts of the country, 
 from whence the call for comity proceeds. For furth¬ 
 er details, I refer to the ‘ Report ’ made by the Hon. 
 Mr. Whitmarsh to the Senate of Massachusetts, at its 
 last Session, ‘ on the petition of George Odiorne and 
 others relative to certain laws (1) of several of 
 the Southern States.’ 1 do not limit my remarks 
 on the want of reciprocity, to the State of Lou¬ 
 isiana alone, because it is obvious that if we are to 
 permit slavery here, through comity, that comity 
 cannot be limited to Louisiana slave-masters alone. 
 We must settle our new Massachusetts Slave Code 
 for all slaveholders at once, from which ever of 
 the twelve slave States they come. Twelve degrees 
 of comity would be intolerable. The whole South 
 are identified in policy on this subject, and I feel that 
 I do enough, in showing that in the slave-portions of 
 our country, generally, no adequate respect is shown 
 to the rights of our free citizens. 
 
 Suppose instead of a colored child, this were the 
 case of a white slave, brought to our shores by a Rus¬ 
 sian or Turkish noble. (2) Could we listen to the 
 claim of either of those ‘ ancient and faithful al¬ 
 lies of the U. S.,’ asking to retain his despot¬ 
 ic authority over our fair skinned fellow creature 
 pleading lor freedom ? The proposition would be 
 thought at once ludicrous and horrible. It would not 
 be tolerated one moment. But white or black skins 
 are nothing here—this tribunal, like a greater, is no 
 respecter ot persons. 
 
 3.—I remark in the third place, that there is no room 
 for comity where the subject has been matter of ex¬ 
 press regulation. The constitution of the U. S. un¬ 
 dertakes to settle, as between the States, the ques¬ 
 tions growing out of slavery. The right of the mas- 
 
 ( 1 ) See Prince’s Dig. of Laws of Georgia 465, 467 
 —Laws of N. C. 1830 ch. 30, ch. 981, 1826 ch 21, 
 p. 684 ch. 362—Mississippi Rev. Code p. 3S7 § 80, 
 377 § 34 Virg. Laws 1830 ch. 39—S. C. Laws 1820, 
 p. 22, 1S23 ]>. 61—Virg. Rev. Code p. 428 § 30— 
 1. Martin Dig. 678—and see especially the Act of the 
 Legislature of Georgia, approved by the Governor 
 Dec. 26, 1831, and still in force, offering a reward of 
 five thousand dollars for the abduction of the editor or 
 publisher ‘ of a certain newspaper called the Liberator, 
 published in the town of Boston and State of Massa¬ 
 chusetts. 
 
 (2) Story Confl. 92. 
 
 ter to reclaim his slave who escapes from the State, 
 where he is held to service, is clearly established. 
 My learned brother admits that this is not the case of 
 an escape, and that the express provision of the con¬ 
 stitution respecting fugitives, is not applicable to it. 
 He contends that the class of cases like that before 
 us, was left to the comity, which was to be looked for 
 between the States. But had the Southern States any 
 right to expect the comity now claimed ? So far from 
 it, that, according to the learned commentator on the 
 constitution, ‘ the want of such a provision under the 
 confederation, (as that for the return of fugitive slaves) 
 was felt as a grievous inconvenience by the slave¬ 
 holding Slates,—since in many states no aid whatso¬ 
 ever would be allowed to the owners ; and sometimes 
 indeed they met with open resistance.’ Now how 
 did it happen, I ask, that the Southern framers of the 
 constitution, after this experience, left a doubtful point, 
 like the present, to be settled by uncertain con¬ 
 siderations of comity, while they guarded with such 
 jealous care an apparently far stronger case of right ? 
 Why not leave the whole to comity ? Where a slave, 
 escaping from bondage, flies to this State, and the 
 master follows in hot pursuit, his right to reclaim the 
 fugitive certainly seems far clearer than where he 
 voluntarily brings his slave among us. Yet the latter 
 case is left out of the constitution, while the former is 
 most carefully guarded.(3) 
 
 4.—If the doctrine of comity is not applicable, where 
 the matter has been the subject of positive regula¬ 
 tions, still less is it admi=«ible when those regulations 
 are the result of mutual concessions, afler long dis¬ 
 pute and difficulty. But this is precisely the history 
 of our constitution. It is called ‘ a compact,’ ‘ a com¬ 
 promise.’(4)—Is it a written compact ? Then we are 
 not to vary or control it by parol. No principle of law- 
 rests on a stronger basis of sound sense than this. Is 
 it a compromise ? Then you may be sure it was care¬ 
 fully penned. A compromise imports a mutual sur¬ 
 render of rights, interests, or prejudices. Unques¬ 
 tionably, then, the instrument contains all that was 
 surrendered. We are not to be told that some of our 
 principles were yielded up by compromise, and the 
 rest are to be sacrificed to comity. The extent of the 
 surrender is limited by the terms of the contract.— 
 Each party said to the other ‘Thus far shaft thou 
 come, and no further! ’ 
 
 (3) It is no reply to this argument to say, as my 
 brother who argued for the master has done, that the 
 case of slaves escaping from other States, was ex¬ 
 pressly provided for in the constitution because there 
 the active interposition of the State authorities is re¬ 
 quired. The case of a slave who comes here by his 
 master’s consent and then refuses to return, presents 
 precisely the same necessity for our active interposi¬ 
 tion, as the case of a fugitive. 
 
 (4) 2 Pick. Rep. 19. 
 
16 
 
 Ellis Gray Loving, Esq., for the Petitioner. 
 
 It is well known that when our State Convention 
 was deliberating on the adoption of the constitution of 
 the U. S., one of the most serious arguments urged 
 against it was that some of its provisions recognized 
 slavery. Suppose the objectors had been told * You 
 not only concede so much to the slaveholder by the 
 terms of the constitution,—but there is something be¬ 
 yond, left unsettled. So far, you go by compact, 
 —and something further—indeed nobody' knows ex¬ 
 actly how far—you go by comity. Certain other un- 
 definable rights are to be ‘ thrown in,’ such as the 
 right of the slaveholder to come into the free States, 
 and there to carry about and manage his ‘ peculiar 
 property',’ where and how he pleases.’ Our Massa¬ 
 chusetts fathers were a sturdy, business like set of 
 men—and a pretension like this, if gravely put for¬ 
 ward, would have proved a great, if not insurmount¬ 
 able objection to the new constitution. The constitu¬ 
 tion undoubtedly expressed the meaning of the par¬ 
 ties, and it expressed their whole meaning. 
 
 5.—Another view may be found worthy of a pass¬ 
 ing notice. The application of the law of the foreign 
 domicil will be found to be chiefly confined to cases 
 of mere contract. In respect to the domestic rela¬ 
 tions, comity cannot be allowed so wide a range. The 
 affections and duties belonging to those relations give 
 more than any thing else, character and individuality 
 to a people ; and their condition and regulation mark 
 the progress of a people in civilization, far more than 
 their laws of contract. A Mansfield may produce a 
 mercantile code for the world, out of the stores of 
 learning and wisdom in his own great mind :—a Hus- 
 kisson may remodel the commercial system ot his na¬ 
 tion ;—but it is only Time, the innovator, that can 
 bind or loose the ties around the homes and hearts of 
 a people. Hence the slowness and difficulty with 
 which foreign laws and usages on these subjects are 
 allowed to intermingle with domestic habits and pre¬ 
 judices. Indeed any considerable variation from our 
 particular mode of sustaining the domestic relations, 
 is punishable as a public offence. Take the case of 
 marriage. Marriage is a contract, and therefore the 
 lex loci contractus is permitted to decide what con¬ 
 stitutes a marriage, but as it is a domestic bond, the 
 same law cannot be allowed to regulate its rights and 
 duties. We have a tradition that Judge Buffer ruled 
 in favor of the husband’s right to administer cor¬ 
 rection to his wife, by beating If such were the 
 law of England could an English husband visiting this 
 country be allowed to exercise such authority here ? 
 May a travelling Turk bring with him his hundred 
 wives ? Might a Hindoo wife be immolated here, on 
 her husband’s funeral pile ? Consider, too, the paren¬ 
 tal relation. Child-murder was lawful in the ancient 
 
 world. It is so still in China and the South Sea. But 
 here, even the much less severe exercises of parental 
 authority, allowed over half Christendom, would not 
 be tolerated. Suppose a foreign guardian and ward to 
 visit Massachusetts—no circumstance would justify 
 his introducing here the barbarous incidents of the 
 feudal wardship. And so, too, we acknowledge the 
 relation of master and servant, when it is founded on 
 mutual advantage,—but we cannot voluntarily recog¬ 
 nize it in the form of slavery, in which the benefit is 
 all on one side. It is evident that such violations of 
 right as those I have instanced, are more readily con¬ 
 demned than immoralities which do not touch the do¬ 
 mestic connexions. 
 
 I offer these preliminary suggestions as general 
 cautions in respect to the admission of the principle of 
 comity. I proceed next to enumerate the exceptions 
 laid down by legal text writers, to the general admis¬ 
 sibility of the lex loci, with a view to ascertain wheth¬ 
 er the present case does not fall within one or more of 
 those exceptions. 
 
 It is laid down on the highest authority, as ‘ a neces¬ 
 sary exception to the universality of the rule [of com¬ 
 ity,] that no people are bound to enforce or hold valid 
 in their courts of justice, any contract [or law,] Which ’ 
 — 1.—‘ offends their morals,—or,2.—contravenes their 
 policy—or, S.—violates a public law ’(l)—or, 4.— 
 which offers a pernicious example.(2) 
 
 1.—Slavery is within the first exception. It is of¬ 
 fensive to morals. 
 
 In going somewhat at large into the moral charac¬ 
 ter of slavery, as I here feel it my duty to do, I have 
 been met by the objection, that the morality of this 
 or of any other institution can only be estimated in a 
 court of law, by a legal standard. I admit the posi¬ 
 tion fully. I only deny its application. The case 
 now before the court is one of novel impression in 
 Massachusetts. Slavery has never, till now, appear¬ 
 ed in this guise before our judicial tribunals, and its 
 character, in this particular aspect, remains yet to be 
 settled. To a certain extent and in a special class of 
 cases, I may be estopped by the constitution of the U. 
 S., as my brother opposite has assumed, from assert¬ 
 ing the immorality of slavery—but when the ques¬ 
 tion is, whether the slave system shall be carried to a 
 greater extent than heretofore, and to a new case, not 
 touched, as I believe, by the constitution, the enquiry 
 as to the general tendency and abstract character of 
 that system becomes material. Repeating, therefore, 
 that I am now treating the question as one of general 
 international law, and deferring to a subsequent stage 
 in my remarks the discussion of its constitutional bear¬ 
 ing, I ask the indulgence of the court while I endeav- 
 
 (1) 2 Kent Com. 457—Story Confl. 95. 
 
 (2) 6 Mass. Rep. 358. 
 
17 
 
 Ellis Gray Poring, Esq., for the Petitioner. 
 
 or to show, chiefly by way of authority, the immoral¬ 
 ity of slavery. 
 
 The testimony of Ethical writers against slavery is 
 unanimous and decisive. I refer, however, to but a 
 single text book, the latest and perhaps the most sat¬ 
 isfactory which has yet appeared. President Way- 
 land says(l) of slavery—‘Its effects must be dis¬ 
 astrous upon the morals of both parlies. By present¬ 
 ing objects on whom passion can be satiated without 
 resistance and without redress, it cultivates in the 
 master, pride, anger, cruelty, selfishness and licen¬ 
 tiousness. By accustoming the slave to subject his 
 moral principles to the will of another, it tends to abol¬ 
 ish in him all moral distinction, and thus fosters in 
 him, lying, deceit, hypocrisy, dishonesty, and a will¬ 
 ingness to yield himself up to minister to the appe¬ 
 tites of his master.’ 
 
 Writers on natural law are equally clear. Slavery 
 is condemned by its very definition. Grotius call it(2) 
 ‘ An obligation to give all our labor for a supply of the 
 bare necessities of life.’ This definition is however, 
 as Rutherforth has remarked,(3) too restricted, as the 
 power of the master applies not only to the slave’s la¬ 
 bor, but to all his other actions. In distinguishing 
 the authority of a parent from that of a master, this 
 author says(4)— 
 
 ‘ The good of the child is the end to which the au¬ 
 thority of the parent over the child is directed ; and 
 the good of the master is the end to which the author¬ 
 ity of the master over the slave is directed. The pa¬ 
 rent has no right to command the child, but in view 
 to the benefit of the child itself; the master has a 
 right to command the slave to do such actions as are 
 for the master’s benefit: so that however the slave 
 may find his account in obeying his master’s com¬ 
 mands, this is merely accidental; since the master’s 
 right to give these commands has another purpose 
 principally in view.’ 
 
 It requires indeed but a short course of reasoning to 
 show the inherent selfishness and injustice of slavery. 
 Elementary writers illustrate the origin of property 
 by saying that when one savage has plucked a cocoa- 
 nut from the tree, no other savage can wrest it from 
 his hands, without a perception of injustice arising. 
 The moral instinct speaks out at once. But what else 
 is slavery, than a regular system by which one man 
 is all his life compelled to pluck cocoa-nuts that anoth¬ 
 er may eat them ? 
 
 The most eminent Statesmen of the South have con¬ 
 curred with the moralist and the civilian on this sub¬ 
 ject.(5) I shall not press their evidence upon the 
 
 ( 1 ) Wayland’s Elements of Moral Science, 209. 
 
 (2) Grot. Lib. Cap. 5 § 27. 
 
 (3) Instit. Nat. Law, Book 1, chap. 20. 
 
 (4) Ibid. 
 
 (5) Take as specimens the following :— 
 
 ‘ Is it not amazing, that at a time when the rights 
 of humanity are defined with precision, in a country 
 
 court, though they are witnesses to this point, of the 
 highest credibility. Indeed on a question of general 
 morals rather than of municipal or local law, a far 
 wider range might be taken than I shall permit to my¬ 
 self now. The prevailing tone of literature respect¬ 
 ing slavery, and the general sense and judgment of 
 the majority of the civilized world, are clear and com¬ 
 petent evidence in my favor. But I pass from these, 
 to enquire what view is taken of the moral character 
 of slavery, by the authoritative expounders of out¬ 
 law. The case of Sommersett, decided in 1772, was 
 mainly argued and determined on the ground of sla¬ 
 very’s being corrupt and immoral. The air of Eng¬ 
 land was declared to be too pure for slaves to breathe 
 in. This principle has been recognized in numerous 
 English cases since, and very recently, in the case of 
 Forbes v Cochrane, (6) where it was decided by 
 the Court of King’s Bench, that thirty-eight slaves, 
 who had escaped from a plantation in East Florida, 
 to an English ship of war on the high seas, became 
 hereby free. The noble opinion of Sir William Best, 
 in that case, does him equal honor as a lawyer and a 
 man. He does not hesitate to stigmatize the British 
 toleration of Slavery in their West India possessions 
 
 above all others fond of liberty, that in such an age, 
 and in such a country, we find men, professing a re¬ 
 ligion the most humane and gentle, adopting a princi¬ 
 ple as repugnant to humanity, as it is inconsistent 
 with the Bible, and destructive to liberty ? ’— Patrick 
 Henry. 
 
 * Iniquitous and most dishonorable to Maryland, is 
 that dreary system of partial bondage, which her laws 
 have hitherto supported with a solicitude worthy of a 
 better object, and her citizens by their practice coun¬ 
 tenanced. 
 
 ‘ Founded in a disgraceful traffic, to which the pa¬ 
 rent country lent her fostering aid, from motives of 
 interest, but which 6ven she would have disdained to 
 encourage, had England been the destined mart of 
 such inhuman merchandise, its continuance is as 
 shameful as its origin .— JVm. Pinckney's Speech in 
 the Maryland House of Delegates. 
 
 ‘ With what execration should the statesman be 
 loaded, who, permitting one half of the citizens to 
 trample on the rights of the other, transforms those 
 into despots, and these into enemies; destroys the 
 morals of one part, and the amor patrice of the other. 
 
 ‘ And can the liberties of the nation be thought se¬ 
 cure, when we have refused the only firm basis, a 
 conviction in tbe minds of the people that these liber¬ 
 ties are the gift of God ? That they are not to be vio¬ 
 lated but with his wrath ? Indeed, I tremble for my 
 country, when I recollect that God is just; that his 
 justice cannot sleep forever; that, considering num¬ 
 bers, nature and natural means only, a revolution in 
 the wheel of fortune, an exchange of situation is 
 among possible events; and that it may become prob¬ 
 able by a supernatural interference. The Almighty 
 has no attribute which can take side with us in such 
 a contest.’— Jefferson's Motes on Virginia. 
 
 (6) 2 Barn, and Cressw. 458—3 Dowl. and Ryl. 
 698. S. C. 
 
13 
 
 Ellis Gray Lnring, Esq., for the Petitioner. 
 
 its ' the crime of the nation,’ and denounces the law 
 
 recognizing slavery as ‘ an unchristian law, and one 
 «\hioh violates the rights of nature, and therelore not 
 to he recognized hete.’ ‘ The proceedings in our 
 Courts,' says that eminent Judge, ‘ are founded upon 
 the law of England, and that law is again founded on 
 the law of nature and the revealed law ot God. If 
 the right sought to be enforced, is inconsistent with 
 either of these, the English Municipal Courts cannot 
 recognize it.’ It appears that the foreign Admiralty 
 cases read by my brother on the other side, were cit¬ 
 ed and commented on in that case. After solemn ar¬ 
 gument, the opinion ot the court in favor ot lreedotn 
 was unanimous. 
 
 These are foreign authorities, and relate to foreign 
 servitude. Before looking for the lights of our own 
 jurisprudence on the subject, I ask leave to define, in 
 a more especial manner, wbat is Slaver}', as it exists 
 among us. 
 
 For this purpose, I shall read from ‘ Stroud’s Sketch 
 «f the Laws relating to Slavery,’ (an accurate and 
 valuable compendium) the following propositions, de¬ 
 scribing the incidents of American Slavery. For the 
 most ample proof of each, I refer to the work itself, 
 where the codes, statutes, judicial decisions, &c. of the 
 several States, on Slavery, are digested. 
 
 * Prop. 1. The master may determine the kind and 
 degree, and time of labor, to which the slave shall be 
 subjected. 
 
 ‘ Prop. 2. The master may supply the slave with 
 such food and clothing only, both as to quantity and 
 quality, as he may think proper or find convenient. 
 
 ‘ Prop. 3. The master may, at his discretion, inflict 
 any punishment upon the person of his slave. 
 
 < Prop. 4. All the power of the master over his 
 his slave may be exercised not by himself only in 
 person, but by anyone whom he may depute as his 
 agent. 
 
 < Prop. 5. Slaves have no legal rights of property 
 in things, real or personal •, but whatever they may 
 acquire, belongs, in point of law’, to their masters. 
 
 « Prop. 0. The slave being a personal chattel, is at 
 all times liable to be sold absolutely, or mortgaged or 
 leased at the will of his master. 
 
 ‘ Prop. 7. He may also be sold by process of law 
 lor the satisfaction of the debts of a living, or the 
 debts and bequests of a deceased master, at the suit of 
 creditors or legatees. 
 
 ‘ Prop. 8. A slave cannot be a party before a judi¬ 
 cial tribunal, in any species of action, against his mas¬ 
 ter, no matter how atrocious may have been the in¬ 
 jury received from him. 
 
 Prop. 9. Slaves cannot redeem themselves, nor 
 obtain a change of masters, though cruel treatment 
 may have rendered such change necessary for their 
 personal safety. 
 
 ‘ Prop. 10. Slaves being objects of property, if in¬ 
 jured by third persons, their owners may bring suit, 
 nnd recover damages for the injury. 
 
 « Prop. 11. Slaves can make no contract. 
 
 ‘ Prop. 12. Slavery is hereditary and perpetual.’ 
 
 I hold in my hand another brief delineation of 
 
 American Slavery. It is accurate and most expres¬ 
 sive, but its plainness of speech is so remarkable, that 
 1 hesitate to read it, before T shtll have premised that 
 its author is the Rev. Robert. J. Breckinridge, a 
 southern clergyman of great eminence, at this mo¬ 
 ment a representative from (he Presnyterian churches 
 of the United States to those of England and Scotland, 
 but perhaps principally distinguished as an uncompro¬ 
 mising opponent of the Immediate Abolitionists. In 
 a speech delivered by Mr. B., he asks: 
 
 ‘ What, then, is slavery ? for the question relates to 
 the action of certain principles on it, and to its probable 
 and proper results; what is slavery as it exists among 
 us ? We reply, it is that condition enforced by the laws 
 of one-half the States of this confederacy, in which one 
 portion of the community, called masters, is allowed 
 such power over another portion called slaves ; as 
 
 ‘ 1. To deprive them of the eutire earnings of their 
 labor, except only so much as is necessary to continue 
 labor itself, by continuing heathlul existence ; thus 
 committing clear robbery ; 
 
 ‘ 2. To reduce them to the necessity of universal 
 concubinage, by denying to them the civil rights of 
 marriage ; thus breaking up the dearest relations of 
 life, and encouraging universal prostitution ; 
 
 ‘ 3. To deprive them of 'he means and and oppor¬ 
 tunities of moral and intellectual culture—in many 
 States making it a high penal offence to teach them to 
 read ; thus perpetuating whatever of evil there is that 
 proceeds from ignorance ; 
 
 ‘4. To set up between parents and their children 
 an authority higher than the impulse of nature and the 
 laws of God ; which breaks up the authority of the 
 father over his own offspring, and, at pleasure separ¬ 
 ates the mother at a returnless distance from her child; 
 thus abrogating the clearest laws of nature ; thus 
 outraging all decency and justice, and degrading and 
 oppressing thousands upon thousands of beings creat¬ 
 ed like themselves in the image of the most high 
 God! 
 
 ‘ This is slavery as it is daily exhibited in every 
 slave State.’ 
 
 I give lastly, the concise and comprehensive defini¬ 
 tion of a Slave, contained in the Louisiana Code, as 
 the most pertinent to the present stage of our enquiry, 
 and as exceeding all others ever framed for effecting 
 the entire piivation of all rights. 
 
 • A slave is one who is in the power of a master to 
 whom he belongs. The master may sell him, dispose 
 of his person, his industry and his labor: he can do 
 nothing, possess nothing, nor acquire any thing but 
 what must belong to his master.’ (1) 
 
 The moral judgment which the laws of Massa¬ 
 chusetts passed on this system was early and deci¬ 
 sive. Not to go back of the Declaration of Rights, at 
 present, the people of Massachusetts, in (he year 
 1780, declared through their organic law, that ‘All 
 men are born free and equal, and have certain natu 
 ral, essential, and inalienable rights, among which 
 may be reckoned the rights of enjoying and defend¬ 
 ing their lives and liberties; that of acquiring ‘pos- 
 
 (1) Civil Code, Art. 36. 
 
V 
 
 19 
 
 Ellis Gray Loring, Esq., for the Petitioner, 
 
 sessing and protecting property ; in fine, that of seek* 
 ing and obtaining safety and happiness.’ 
 
 Observe that the Constitution goes on the moral 
 ground. Liberty is a ‘ natural right.’ Slavery then 
 is a violation of the law of nature. And what is the 
 law of nature ? It is synonymous with the law of 
 God, and comprises ‘ those rules of justice, which 
 ought to govern the conduct of men, as moral and 
 accountable beings, living in a social state, indepen¬ 
 dently of positive human institutions ’ (1) But the Con¬ 
 stitution further declares Liberty to be an * essemial 
 right.’ Then is slavery essential wrong —concentra¬ 
 ted injustice. Again,—Men are born free—and free¬ 
 dom is ‘ inalienable ’—must it not then be a part ot 
 their moral being ? 
 
 The cases of Winchendon v. Hatfield (2) and of 
 Greenwood v. Curtis, with the brief reports of elder 
 decisions contained in the notes to the former case, 
 abundantly confirm my position that Slavery was 
 abolished in Massachusetts, from a conviction of its 
 immoral nature. From the opinion of Judge Sedg¬ 
 wick (3) in Greenwood v. Curtis, I will read a single 
 paragraph: 
 
 ‘ The previous question, whether such a contract 
 as this under consideration be immoral, unrighteous, 
 irreligious,—whether the execution of such a con¬ 
 tract be consistent with the rights of our fellow men, 
 or with the duty we owe to our God,—will not be 
 made the subject of an argument. So strong and so 
 natural is the abhorrence ot slavery, in the heart of a 
 man unpolluted by its practice ; so opposed to the 
 just principles on which our revolution was founded ; 
 and so contrary to the mild, merciful, and benignant 
 dictates of the holy religion we profess; that a labor¬ 
 ed discussion of the question is deemed to be super¬ 
 fluous.’ 
 
 Reluctant as I feel to touch the confines of theolog¬ 
 ical discussion, I cannot excuse myself, in closing 
 these remarks on the moral character of slavery, from 
 a brief allusion to the opinion which has sometimes 
 been held, that slavery has the sanction of revealed 
 religion in its favor. So deeply responsible do I feel 
 to the sacred cause I plead, that I dare not withhold 
 any argument, which carries force to my own mind. 
 
 Slavery was permitted or appointed by the Deity, 
 under the elder dispensation, expressly as a punish¬ 
 ment upon certain conquered nations, for their idola¬ 
 try and other entries. It was ordained as a national 
 judgment, in the. same manner as the utter and piti- 
 
 (1) Wheat. Internat. Law, 36. 
 
 (2) 4 Mass. Rep. 128. 
 
 (3) 6 Mass. Rep. 366. This case was decided by 
 the rest of the Court, contrary to Judge Sedgwick’s 
 opinion ;—but not on grounds impeaching his main 
 principle,—the immorality of the slave trade. They 
 held that the contract could be analyzed, and the 
 sound part separated from those which were infected 
 by the immorality of the trade.—See praise of Sedg¬ 
 wick’s opinion,—Story, Confl. 215 in note. 
 
 less extermination of every breathing fliirig was com¬ 
 manded in the case of some of the captured cities of 
 Canaan. When the slavery of the blacks cati plead 
 either a like origin or a similar divine commission, it 
 may with more confidence, plead in justification the 
 example of the Jews. Unfortunately it is not more 
 deficient in these, than in the mild and merciful reg¬ 
 ulations, that mitigated the harshness of Hebrew ser¬ 
 vitude. Gross cruelty towards a slave entitled him 1o 
 freedom. (4) Perpetual slavery was unknown ;—all 
 slaves without exception being set free at the jubilee 
 or fiftieth year. (5) 
 
 Finding in the records of Christianity no direct de¬ 
 nunciation of slavery in terms, we are sometimes told 
 that Christianity does not condemn it. This arises 
 from a misapprehension of the business of Christian¬ 
 ity—Christianity does not so much claim to be a body 
 of ordinances, as a quickening spirit. It came not to 
 attack particular forms of evil but to proclaim correct¬ 
 ive principles. It generally does not so much as name 
 the vicious institutions of its time, for it was design¬ 
 ed to outlive even the memory of them. (6) The 
 founder of our religion built tor Eternity'. He rarely 
 touched the political or social arrangements of his own 
 day, but he set in motion influences which will he 
 felt forever and which must ultimately overthrow 
 every form of vice and oppression on earth. His re¬ 
 ligion prostrates human selfishness, in enjoining us to 
 do to others as we would have them do to us : and 
 subverts political and personal slavery by teaching the 
 
 (4) Exodus, Ch. 21, v. 26, 27. 
 
 (5) 15 Deut. 12—14,-25 Levit. 8 —10.— In a de¬ 
 bate on the Slave Trade, in the House of Lords, June 
 24, 1806, the celebrated Bishop Horsley, in reply to 
 the Earl of Westmoreland, said ‘ The noble Earl has 
 produced to your Lordships a passage in the Levitical 
 Law, which enacts that the foreign slave should be 
 the property of his master forever. Whence the no¬ 
 ble Earl concludes, that the perpetual servitude of 
 foreign slaves was actually sanctioned hy the law. 
 But, my Lords, I must tell the noble Earl, and 1 must 
 tell your Lordships, that the noble Earl has no under¬ 
 standing at all ot the technical terms of the Jewish 
 Law. In all the laws relating to the transfer of 
 property, the words for ever, signify only to the next 
 jubilee. That is the longest forever, which the Jew¬ 
 ish law knows, with respect to property. And this 
 law, which makes the foreign slave the property, of 
 his master forever, makes him no longer the master’s 
 property than to the next jubilee. And, with the 
 great attention the noble Earl has given to the laws 
 and history ot the Jews, he must know, that when 
 they were carried into captivity, they were told by 
 their prophets, that one of the crimes, which drew 
 down that judgment upon them, was their gross neg¬ 
 lect and violation of these merciful laws respecting 
 manumission ; and that in contempt and defiance of 
 the law, it had been their practice to hold their for¬ 
 eign slaves in servitude, beyond the year of jubilee.’ 
 —20 Howell’s State Trials, 32 note. 
 
 (6) See Wayland’s Remarks—Elem. Mor. Sci. 213. 
 
20 
 
 Ellis Gray Loring, Esq., for the Petitioner. 
 
 brotherhood of men. If however its author’s main 
 purpose had been to abolish slavery, I know not how 
 he could have described his mission in more signifi¬ 
 cant terms, than by declaring, at the very opening of 
 his ministry, that he came to preach the gospel to the 
 poor, (1) to proclaim deliverance to the captives; to 
 set at liberty them that are bruised. 
 
 Slavery then is contrary to good morals;—a vio¬ 
 lation of the law of nature, and of the revealed will 
 of God. It therefore falls within the first exception 
 to the exercise of national comity. 
 
 2. But it is also within the second exception. It 
 contravenes our policy. If the slave system of Lou¬ 
 isiana is to be introduced here, in the most limited 
 extent, it v.’ll be an entire novelty among us. Mas¬ 
 sachusetts has known nothing like it. The slavery 
 that was abolished here nearly sixty years since, re¬ 
 sembled little more than in name, the hard bondage 
 of the South. In the Massachusetts Colony, as early 
 as 1641, 1 it is ordered by the Court and the author¬ 
 ity thereof, that there shall never be any bond-sla¬ 
 very, villenage, or captivity among us, unless it be 
 [such] lawful captives taken in war, as willingly sell 
 themselves, or are sold to us; and such shall have 
 the liberties and Christian usage , which the law of 
 God, established in Israel concerning such persons, 
 doth morally require.(2) This law was not a dead 
 letter. Chief Justics Parsons says, (3) ‘ If the mas¬ 
 ter was guilty of a cruel or unreasonable castigation 
 of his slave, he was liable to be punished ior a breach 
 of the peace, and 1 believe the slave was allowed to 
 demand sureties of the peace, against a violent and 
 barbarous master. Under these regulations, the 
 treatment of slaves was in general mild and humane, 
 and they suffered hardships not greater than hired 
 servants.’ 
 
 Throughout New England, it is believed (hat Sla¬ 
 very • was very far from being oi the absolute, rigid 
 kind. The master was as liable to be sued by the 
 slave, in an action for beating or wounding, or for 
 immoderate chastisement, as he would be, if he had 
 thus treated an apprentice. A slave was capable of 
 holding property, in character of devisee or legatee. 
 
 (1) To two millions of whom, the Gospel is, in this 
 country, practically denied. The official report of 
 the Presbyterian Synod of South Carolina and Geor¬ 
 gia, published March 22, 1831, contains the following 
 statements —‘ In this Christian Republic, there are 
 over two millions of human beings, in the condition of 
 Heathen, and in some respects in a worse condition. 
 Their moral and religious condition is such, as that 
 they may justly be considered the heathen of this 
 Christian country, and will bear comparison with 
 heathen in any country in the world. The negroes 
 are destitute of the privileges of the gospel, and ever 
 will be under the present state of things.’ 
 
 (2) General Laws and Liberties of Massachusetts Bav. 
 Chap. 12 § 2. 
 
 (3) Winchendon v. Hatfield 4 Mass. Rep. 127. 
 
 If the master ihould take away such property, hia 
 slave would be entitled to an action against him, by 
 his prochein ami. Slaves had the same right of life 
 and property,as apprentices; and the difference be¬ 
 tween them was this : an apprentice is a servant for 
 time, and the slave is a servant for life.’(4) 
 
 If the slavery of Massachusetts differed only in its 
 duration from apprenticeship, it follows, that the 
 subject of it could not have been removed without 
 his consent, out of the Common wealth,(5) as the re¬ 
 spondent claims should be done with the subject of 
 the present suit. Negro slavery in this state was 
 far milder than the ancient English villenage (6)— 
 But even the villien could not be carried oulof Eng¬ 
 land.(7) 
 
 The Declaration of Independence, though not 
 having the force of law, must be considered as the 
 expression of our fundamental policy. It was our 
 initiatory act as a nation, dictated by ‘ a decent re¬ 
 spect to the opinions of mankind;’ a manifesto in 
 which we set forth to the world the self-evident 
 principles, which were to form the basis of our ris¬ 
 ing institutions. 
 
 Our own Declaration of Rights, and the judicial 
 decisions founded on it, are indicatory of the same 
 policy. The course taken by Massachusetts on the 
 Missouri question, points in the same direction. To 
 adopt the expressive language ol the resolutions on 
 slavery, adopted at a recent meeting of citizens in 
 our Faneuil Hall, 1 Our laws do not authorize it— 
 our principles revolt against it—our citizens will not 
 tolerate its existence among them.’ 
 
 Slavery falls within the third exception.to the rule 
 of national comity. It violates our public law. The 
 law of this Commonwealth, on slavery, from the 
 adoption of the Constitution of Massachusetts to the 
 ratification of the Federal Constitution, was, to all 
 intents and purposes, the same with the law of Eng¬ 
 land. It had been settled in Somersets case,(8) in 
 1772, that the common law abhors, and will not en¬ 
 dure the existence of slavery on English soil. This 
 was an unbending principle. We have seen its ap¬ 
 plication, when enlarged to the British Colonial pos¬ 
 sessions, in the case of the American slaves forced 
 into Bermuda, and there discharged on habeas cor¬ 
 pus. This was no unadvised act of the local au¬ 
 thorities. It was sett ed law. ‘ In consequence of 
 this decision [in Sommersct's case] ’ says Air. Chris¬ 
 tian, ‘ if a ship loadcn with slaves was obliged to put 
 into an English harbor, all the slaves on board might 
 
 (4) Reeve Dom. Rel. 340—2 Dane Abr. 313. 
 
 The master had no control over the religion of the 
 slave.—Ibid. 
 
 (5) Reeve, 340. 
 
 (6) 2 Dane Abr. 313. 
 
 (7) 20 Howell State Trials, 66. 
 
 (8) 20 Howell, State Trials, 70. 
 
21 
 
 Ellis Gray Loring, Esq., For the Petitioner. 
 
 and ought to be set at liberty.’(1) In Forbes vs. 
 Cochrane (2) a similar doctrine was held. 
 
 Now I ask the court to look at the language of our 
 Declaration of Rights, and say whether Sommer- 
 sett’s case could have settled a broader principle for 
 England, than our State constitution establishes for 
 us. When that instrument declares, that all men 
 are born free, and that freedom is ‘ unalienable,’ it 
 covers the whole ground. It was followed by judi¬ 
 cial decisions, applying its principles to the case of 
 Massachusetts slaveiy. 
 
 ‘ Slavery was introduced into this country,’ says 
 Parsons, C. J., ‘soon after its first settlement, and 
 was tolerated until the ratification of the present 
 constitution,— but at the first action which came be¬ 
 fore the court after the establishment of the Consti¬ 
 tution, the judges declared, that by viitue of the 
 Declaration of Rights, slavery in this state was no 
 more.’(3) 
 
 Again, all the component parts of slavery are for¬ 
 bidden by our law. If the parts are forbidden, is 
 not that a prohibition of the whole ? Slavery is a 
 collection of abuses—of various invasions of person¬ 
 al rights. If our law will not permit a man to beat 
 his neighbor, to kidnap or sell him into exile, to for¬ 
 bid his marriage, to rob him of his children, to de¬ 
 prive him of education, to plunder him of his earn¬ 
 ings, shall we be told that it will allow a system 
 which is an aggregate of all these offences? No 
 parts of this system could be tolerated, but by posi¬ 
 tive law. Are we to introduce the whole through 
 comity ? 
 
 4.—A fourth exception to the admission of foreign 
 laws by comity has been stated to be, where they 
 would set before our citizens a pernicious and de¬ 
 testable example. It is indeed asserted, on the oth¬ 
 er side, that slavery will not present a bad or dan¬ 
 gerous example here, for the sentiment of our state 
 is so strongly against it, that we have nothing to 
 apprehend from its influence. It is a sufficient an¬ 
 swer to this, that whatever is in itself bad and capa¬ 
 ble of imitation, must be, if tolerated among us, of 
 bad example. It is no satisfactory reply to say, that 
 the constitution forbids the holding of slaves in this 
 stale. The constitution is only the expression of 
 public sentiment, and may be altered, if that senti¬ 
 ment could change. Jefferson has particularly no¬ 
 ticed the pernicious influence of the example pre¬ 
 sented by slavery— 
 
 ‘ The whole commerce between master and slave 
 is a perpetual exercise of the most boisterous pas¬ 
 sions, the most unremitting despotism on one part 
 
 (1) Bl. Com. 425 in Not. Ed. 1793. 
 
 (2) 2 B. & Cresw. 448. 
 
 (3) 4 Mass. Rep. 127. 
 
 and degrading submission on the other. Our chil¬ 
 dren see this, and learn to imitate it. The parent 
 storms, the child looks on, catches the lineaments of 
 wrath, puts on the same airs in the circle of smaller 
 slaves, gives loose to the worst of passions, and thus 
 nursed, educated, and exercised in tyranny, cannot 
 but be stamped by it with odious peculiarities.’(4) 
 
 If, then, the influence of slavery is bad, it is not 
 enough to say that that influence will be small here. 
 I know not that it would be small in fact. At the time 
 of Sommersett's case,when, I suppose,there were not 
 one fourth as many slaves in the British West In¬ 
 dies, as there now are in the United States, and 
 when the communication between those isl¬ 
 ands and Great Britain was ten-fold more diffi¬ 
 cult than it now is between the different pails of 
 this country, Lord Mansfield said there w’ere 15,000 
 slaves living in England, brought there by their 
 masters, on the strength of an opinion, given a few 
 years before by two eminent lawyers, that they 
 might be still held in England, and carried back as 
 slaves.(5) Here is a somewhat appalling statement. 
 After all, however, this is not a question of degree, 
 but of kind. If as a powerful example, it would be 
 bad, as a weaker example it is bad still, Be it great 
 or small, it is a part of our rights as freemen, to be 
 neither pained nor corrupted by the presence of sla¬ 
 very. 
 
 I trust it has been made to appear that independ¬ 
 ently of the Constitution of the United States, sla¬ 
 very is opposed to the morals and policy of Massa¬ 
 chusetts, too diametrically to admit the exercise of 
 the comity claimed. I now hope to show, that noth¬ 
 ing contained in that instrument can affect the pre¬ 
 sent question. 
 
 What, then, is the operation of the constitution of 
 the U. S. on the subject of slavery in Massachu¬ 
 setts ? 
 
 It has been argued, that, as the constitution of 
 the United States recognizes slavery—in acceding to 
 the constitution, we are estopped from denying its 
 morality or policy. Estoppels are not favored in 
 law,—and the doctrine set up savors of the most ul¬ 
 tra school of liberal construction. How is it that 
 the constitution recognizes slavery ? In the first 
 place, simply as a matter of fact; and, in the next 
 place, by conferring certain rights, and prescribing 
 certain duties, growing out of the existence of sla¬ 
 very. We have agreed to recognize slaves as a ba¬ 
 sis for direct taxation and representation,—and to 
 give them up, when they abscond into the free 
 
 (4) Notes on Virginia. 
 
 (5) The London newspapers of that day were de¬ 
 filed by the notices of the sale of negroes; adver¬ 
 tisements for runaway slaves, &e. See Clarkson’s 
 history of the abolition of the slave trade. 
 
 4 
 
22 
 
 Ellis Gray Loring, Esq., for the Petitioner. 
 
 states,—and here we stop. IIow am 1 to deduce 
 from tliis, the right claimed for the citizens of oth¬ 
 er states, to force their slaves upon us ? The ground 
 on which the recognition of slavery was admitted by 
 Massachusetts into the constitution, was no change 
 of sentiment on the subject of slavery. It was a 
 compromise, for the sake of peace. It was only a 
 recognition pro tanto ; and so far as we have agreed 
 to recognize it, we do so,—that is, within certain 
 limits, and in a particular way. The position that, 
 having recognized it to a limited extent, we are 
 bound not to object to its being carried to a greater 
 extent, is net a new one. It was a leading argument 
 at the time of the Missouri question, that, having 
 admitted the principle of slavery in the constitution, 
 we could not object to its extension into new states. 
 But this ground was rejected by the north, and no 
 where more decisively than in Massachusetts. More 
 recently, it has been asserted, that the recognition 
 of slavery in the national compact renders it unlaw¬ 
 ful for individuals, in the free states, to discuss its 
 evils or their remedy. These loose suggestions ar¬ 
 gue a very superficial acquaintance with the consti¬ 
 tution. I will not urge again, the general consid¬ 
 erations by which I have shewn that the terms of 
 the constitution are the measure of the surrender 
 made by the parties to it, of their peculiar princi¬ 
 ples or rights. It is sufficient to say, that an amend¬ 
 ment to the constitution inserted with jealous care, 
 provides that ‘ The powers not delegated to the U. 
 States by the constitution, nor prohibited by it to 
 the states, are reserved to the states respectively, 
 ©r to the people.’ 
 
 To apply this rule to the case before us. Inde¬ 
 pendently of the case of fugitive slaves, no power 
 is delegated to the United States, by the constitution, 
 to regulate the relation of master and slave within 
 the several states,—nor is the power to regulate or 
 annul that relation prohibited by the constitution to 
 the states respectively. Each state is sovereign in 
 regard to it, and Massachusetts only owes to Lou¬ 
 isiana (it being a case not provided for in the con¬ 
 stitution,) the same consideration that would be due 
 to Spain, or any other friendly power. 
 
 The second section of the fourth article of the 
 constitution of the United States, which enacts that 
 x no person held to labor or service, in one state, 
 under the laws thereof, escaping into another, shall, 
 in consequence of any law 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,’ has received a judicial construc¬ 
 tion in two cases decided in Pennsylvania. In But¬ 
 ler vs. Hopper (1) Judge Washington decided, that 
 
 this clause did not extend to the case of a slave vol¬ 
 untarily carried by his master into another state, 
 and there leaving him, under the protection of some 
 law declaring him free. The same point—namely, 
 that the constitutional provision, respecting persons 
 escaping from labor, is to be strictly construed, was 
 again decided by the same Judge, Ex parte Sim¬ 
 mons.(2) 
 
 A third case may be adduced, decided Feb. 20, 
 183G, by Judge Barnes, more recently President of 
 the District Court for the city and county of Phila¬ 
 delphia, upon the following facts.(3) Marshall 
 Green, a black man, was claimed as a slave, by Pe¬ 
 ter Buchell of Maryland. About four years previ¬ 
 ous to the hearing before Judge Barnes, Marshall 
 absconded from his master’s residence, and contin¬ 
 ued absent till August, 1835, when he was arrested 
 by Buchell, his master, and carried back to Mary¬ 
 land. At the time when he absconded, he took 
 with him his three children, who were alleged also 
 to be slaves. After Marshall’s return to Maryland, 
 Buchell, in order to obtain posses-ion of these chil¬ 
 dren, gave him permission, and for that purpose 
 furnished him with a pass, to come into Pennsyl¬ 
 vania, upon his express promise, that he would, 
 within a certain period, if successful in the pursuit 
 of his children, bring them to his master,—if not 
 successful, he would return himself. The time of 
 absence granted by the master, having expired, 
 Marshall was again arrested. Judge Barnes refus¬ 
 ed the certificate applied for by the master, on the 
 ground that the act of Congress, founded cn the 
 constitutional provision, did not embrace a case like 
 that before him—inasmuch as Marshall was not a 
 fugitive slave, had not escaped from one state into 
 another,—but by his master's consent had left Mary¬ 
 land, and come into Pennsylvania. 
 
 If, then, this provision of the constitution cannot 
 be made to cover the present elaim, it has necessa¬ 
 rily a strong bearing against it. It is a sound max¬ 
 im of construction, that Expressum facit ccssare 
 taciturn. In Lunsford v. Coquillon.(4) the Supreme 
 Court of Louisiana say,— 
 
 1 The right of a state to pass laws, dissolving the 
 relation of master and servant, is recognized in the 
 constitution of the U. S. by a very forcible impli¬ 
 cation. This instrument 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 thereof, be discharged from 
 such service or labor. Hence the implication is 
 strong, that such persons who do not escape, but 
 whose owners voluntarily bring, may be discharged 
 by the laws or regulations of the state, in which 
 
 (2) 4 Wash. C. C. II. 396. 
 
 (3) Stroud’s Slave Laws 1G7. 
 
 (4) Mart. Hep. 4G5. 
 
 (I) 1 Wash. C. C. Rep. 501. 
 
23 
 
 Ellis Gray Lor big , Esq., for the Petitioner . 
 
 they are so brought. For if this could not be, to 
 what use would be the prohibition ? ’ 
 
 A similar remark may be made, respecting the 
 statutory provisions of the states, cited by the op¬ 
 posing counsel. I take as an example, the statute 
 of New York. It pronounces all persons in that 
 stale to be free, with certain exceptions, among 
 which is that of slaves attending their masters, on 
 a visit of less than six months. It is obvious that 
 the framers of that law supposed the special exemp¬ 
 tion was necessary, to prevent the local law of free¬ 
 dom from entirely annulling the law of the foreign 
 domicil. 
 
 No man is more settled than I am in the convic¬ 
 tion, that the court must administer justice accord¬ 
 ing to law. He the constitution what it may, here 
 we are to abide by it It is indeed my opinion, that 
 the northern states, in their concessions to slavery 
 contained in that instrument, particularly in pledg¬ 
 ing themselves to active measures, for restoring run¬ 
 away slaves, were guilty of a compromise of long 
 avowed principles,(1) a barter of conscience, a vic- 
 lation of the express law oj God, which commands, 
 
 . ' ‘ Thou shalt not del iver unto his master, the servant 
 which is escaped from his master unto thee. He 
 shall dwell with thee; where it liketli him best. Thou 
 shalt not oppress him.’(2) Still, were this like the case 
 of a fugitive slave, where, as I conceive, the laws of 
 God and the laws of man conflict, I should not stand 
 here before a legal tribunal, and urge the court to dis¬ 
 regard or annul the human law, I only claim,that when, 
 as in the present case, we get beyond the sphere of the 
 human enactment,the court are free there tolook to the 
 w ill of God ( l the perfect law of liberty ’) alone. In this 
 sense, and to this extent, ‘ chiistianity is part of the 
 common law,’—But my learned brother is not satisfi¬ 
 ed with having the human law paramount, within its 
 own limits. He claims that whatever be the view 
 which good morals or religion take of slavery, the 
 laws of man having introduced it to a certain extent, 
 there would be great inconsistency in stopping there ; 
 or in even professing any more conscientious scruples 
 on the subject. He argues that, as one of this court 
 might be called on to give a certificate for the remov¬ 
 al of a fugitive slave to-morrow, there would be gross 
 inconsistency in deciding that the voluntary introduc¬ 
 tion of slavery into Massachusetts would be immoral 
 and impolitic to-day. 
 
 I can scarcely believe, that the learned counsel 
 can seriously argue that the State of Massachusetts, 
 having become a party to a compact, under which 
 certain rights are secured to slave masters, is to 
 
 (1) ‘Many sacrifices of opinion and feeling.’— 
 Story, 3 Comm, on Const. 677 
 
 (2) 23 Deut. 15, 16. 
 
 3 
 
 be presumed to have abandoned her long cherished 
 views of the character and tendency of slavery ; ot* 
 her policy of exeluding it from her soil. Nothing in 
 her history or public acts gives the least countenance 
 to such a theory. We all know, perfectly well, that 
 Massachusetts did not agree to restore fugitive slaves 
 because she had changed her mind as to slavery, but 
 because she feared anarchy and divisions,—and the 
 constitution, such as it was, was the best bargain she 
 could make. We do not restore these unhappy be¬ 
 ings now, because it is right so to do, but because, 
 right or wrong, we have agreed to it. Suppose, then, 
 we admit, for a moment, the gentleman’s charge of 
 inconsistency, and what follows ?—why, nothing, but 
 to be thankful that the merit of inconsistency is still 
 left for us. To be thoroughly consistent in wrong, 
 would be truly a ‘ bad eminence.’ 
 
 But, I have no belief that the court will admit, that 
 a decision in favor of the petitioner w ould involve 
 any inconsistency whatever. I will borrow the lan¬ 
 guage of the learned counsel for the respondent, in 
 speaking of the ‘ morality ’ of slavery, and say of « con¬ 
 sistency,’ that it is to be measured, in a court of law, 
 by a legal standard alone. And I shall now attempt 
 to show, that the European law of slavery proceeds 
 entirely on the ground, which has been charged as 
 inconsistent;—and moreover, that courts of the high¬ 
 est authoiity in the free States of our country, and 
 Jurists of the highest eminence, have not felt them¬ 
 selves bound, by the obligations contained in the con¬ 
 stitution, from deciding against the comity, which 
 seeks to introduce slavery into those states. 
 
 In the case of Sommersett, the leading English 
 case, it was decided 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. It is so 
 odious that nothing can be suffered to support it but 
 positive law.’(3) It is thus conceded by Lord Mans¬ 
 field, that the same institution which was then sus¬ 
 tained, and even encouraged, by the British Govern¬ 
 ment in the colonies, where it was supported by the 
 customary law, might he declared by the courts to 
 be too odious and immoral to be allowed a footing on 
 English ground. A necessary position of Mr. Har¬ 
 grave, in his masterly argument for the slave Som- 
 mersetf, is that slavery is, in the contemplation of law, 
 a purely local institution ; and that, as such, its being 
 tolerated bylaw, in one part of the British dominions, 
 did not prevent the court from deciding on its immor¬ 
 ality and impolicy at home.—-And this view was cer¬ 
 tainly confirmed by the court. I have already said, 
 that this has been long a rule of law of the principal 
 states in Europe. It may be stated as I have done, 
 
 (3) 20 Howell State Trials, 82. ; . _ _ 
 
24 
 
 Ellis Gray Loring, Esq., fur the Petitioner. 
 
 that slavery is a merely local institution—or, more 
 plainly, that the law of all Europe is, that slaves in 
 the colonies are property —in the parent country they 
 are men, —and all the legislation and judicial decis¬ 
 ions of those countries, on the subject of slaves, pro¬ 
 ceed on that ground. On this account. Lord Mans¬ 
 field says,(l) there is no difficulty in giving effect in 
 England, to a contract for the sale of a slave in the 
 W. I_but, where the person of the slave is in Eng¬ 
 
 land, and becomes the subject in controversy, that is 
 'a widely different case. If this distinction be clearly 
 kept in view, coupled with the prineiple, that no civ¬ 
 ilized nation will sanction an aggression upon the le¬ 
 gal rights of the citizens of other friendly States, with¬ 
 in their own limits, we shall find no great difficulty 
 in reconciling the admiralty and other cases, cited by 
 the respondent’s counsel, with the point for which 
 we contend. 
 
 The case of Forbes vs. Cochrane, before cited, is 
 very full to this point. Holroyd, J. remarks, ‘ accord¬ 
 ing to the principles of the English law, such a tight 
 cannot be considered as warranted, by the general 
 law of nature. I do not mean to say, that particular 
 circumstances may not introduce a legal relation to 
 that extent; but assuming that there may be such a 
 relation, it can only have a local existence, where it 
 is tolerated by the particular law of the place. The 
 law ol slavery is a law in invitum ; and when a par¬ 
 ty gets out ol the territory where it prevails, and out 
 of the pow er of his master, and gets under the pro¬ 
 tection 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 particular place only, does not continue.’ 
 
 Best, J. said, ‘ 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 law, they have broken their chains, they 
 have escaped from their prison, and are free. The 
 plaintiff does not found his action upon any violation 
 of the English laws, but he relies upon the comity of 
 nations. 1 am of opinion, however, that he cannot 
 maintain any action in this country, by the comity of 
 nations. Although the English law has recognized 
 slavery, it has done so within certain limits only .— 
 Whatever service he (the slave) owed by the local 
 law, is got rid of, the moment he got out of the local 
 limits.’ 
 
 In the case of Knight v. Wedderburn,(2) tried in 
 Scotland, before the Court of Session, Jan. 15, 1778, 
 it was argued for Mr. Wcddcrburn, in support of his 
 
 claim tothe services of Knight, a Jamaica slave, whom 
 he had brought with him to Scotland, that Knight was 
 still a slave. ‘ A right of property,’ said the counsel, 
 ‘will be sustained in every country, where the subject 
 of it may come. The Status of persons attend them 
 wherever they go The law of the colonies is not to 
 be considered unjust, in authorizing this condition of 
 slavery. The statutes which encourage the African 
 trade, show that the Legislature do not look on it in 
 that light.' 
 
 • The Court were of opinion, that the dominion as¬ 
 sumed over this negro, under the law of Jamaica, be¬ 
 ing unjust, could not be supported in this country, to 
 any extent.’ 
 
 We have seen in the case of Forbes v. Cochrane, 
 that the British courts will not respect the claims of 
 Spanish slave-masters, when their slaves get out of 
 Spanish territory. And yet Great Britain has recog¬ 
 nized, in a great number of treaties and other public 
 acts, the right of Spain to hold slaves. In the treaty 
 of Utrecht, in 1713, there is an express stipulation that 
 4S00 slaves should be annually supplied to the Span¬ 
 iards. But not to rely on this, very recent conven¬ 
 tions recognize the right of Spain to prosecute the 
 slave trade, south of the line. Yet Great Britain finds 
 no inconsistency between these acts, and her laws 
 denominating the slave trade a crying enormity. I 
 do not mean to deny, that the policy of foreign gov¬ 
 ernments and of our own, does in my own private 
 judgment, involve inconsistency. 
 
 ‘ Earth is sick, 
 
 And Heaven is weary of the hollow words 
 
 Which kings and statesmen utter, when they talk 
 
 Of justice.’ 
 
 The prohibition of the foreign slave trade by our 
 own government, at the same time that w* tolerate 
 the domestic slave trade, is grossly inconsistent. Still 
 in legal contemplation, it is otherwise,—and this is 
 sufficient for our present purpose. The Stales of Eu¬ 
 rope have seen the evils of slavery too clearly, to al¬ 
 low it a foothold at home, while mistaken views ot 
 colonial policy have caused them to vie with each 
 other, in encouraging it abroac^c 
 
 I now refer to a few American cases, to show that 
 we have adopted in this country a policy analogous to 
 that of England,—by recognizing slavery as a local 
 or partially acknowledged institution only. Our law 
 is thatslaves arc property within ceitain limits, name¬ 
 ly, (repi osculation cxccptcd) while they remain under 
 the local law of slaver)’, or when they appear else¬ 
 where in the character of fugitives. They are, on (he 
 other hand, men where representation in Congress is 
 concerned, or whenever they come rightfully within 
 tlm limits of the local law of freedom. 
 
 I refer the court again to the case Ex parte Sim¬ 
 mons, decided by Judge Washington, himself a slave- 
 
 (1) 20 Howell St. Tr. 79. 
 
 (2) 20 How. St. Tr. 3, note. 
 
25 
 
 Ellis Gray Loving, Esq. 
 
 holder. In that case, the claimant of the slave, who 
 had been a resident of South Carolina, and still had a 
 house and plantation there, came to Philadelphia with 
 his slave, hired a house and occupied it tor about ten 
 months. The law of Pennsylvania authorizes sojourn¬ 
 ers, who shall not remain within that State more than 
 six-months, to retain control over the slaves whom 
 they bring with them. It was determined by the 
 Judge that, as the claimant did not bring himself with¬ 
 in the exception of the statute, the slave was free. I 
 submit to the Court, that in this commonwealth, a 
 slave master can have no greater rights on his first 
 arrival here with his slave, than he has in Pennsyl¬ 
 vania after remaining there six months. The call on 
 us for comity, in the case now before the court, is not 
 more imperative than it was in Pennsylvania in the 
 cases cited. In both cases alike, the claim is that the 
 provisions of the positive law of the country should be 
 enlarged, out of comity to a foreigner. The Pennsyl¬ 
 vania case goes clearly on the ground that the provi¬ 
 sions of the constitution of the U. S. create no obliga¬ 
 tions on the States, except by their express terms, 
 and according to their plain and direct import. 
 
 In Commonwealth vs. Holloway (1) it was held 
 thst the law of a slave state that ‘ a child follows the 
 condition of its mother,’ partus sequilur ventrem, 
 could not be adopted by comity, in Pennsylvania, in 
 the case of the child of a slave who had absconded 
 from another state, before she became pregnant. I 
 refer also to Butler v. Hopper, before cited. 
 
 In the case of Saul vs. His Creditors, (2) the Su¬ 
 preme Court of Louisiana uses the following lan¬ 
 guage : 
 
 ‘ Take another case. By the laws of this country, 
 Slavery is permitted, and the rights of the master can 
 be enforced. Suppose the individual subject to it, is 
 carried to England or Massachusetts; would their 
 courts sustain the argument, that his state or condi¬ 
 tion was fixed by the laws of his domicil of origin ? 
 We know they would, not.' 
 
 The case of Francisco (3) came before the present 
 Chief Justice of this Court, on habeas corpus. In 
 that case, Mrs. Howard, a resident in the Island of 
 Cuba, and the supposed owner of the boy Francisco, 
 by her return to the writ, expressly disclaimed hold¬ 
 ing him as a slave. The boy, on being examinod by 
 the Judge privately, expressed his desire to go with 
 Mrs. Howard. The Chief Justice decided that the 
 boy might do as he chose,—-saying in his opinion, ‘ If 
 Mrs. Howard, in her return to the writ, had claimed 
 the boy as a slave, I should have ordered him to be 
 discharged from her custody. The boy, by the law 
 of Massachusetts, is in fact, free.’ 
 
 , for (he Petitioner. 
 
 The author of ‘ The Conflict of Laws ’ touches on 
 this very point. Referring to Sommersett’s case, he 
 says, ‘ As soon as a slave lands in England, he be¬ 
 comes, ipso facto, a freeman, and discharged from the * 
 state of servitude. Independent of the provisions of 
 the Constitution of the United States, for the protec¬ 
 tion of the rights of masters in respect to domestic 
 fugitive slaves, there is no doubt that the same prin¬ 
 ciple pervades the common law of the non-slavehold¬ 
 ing States in America.’ (-1) 
 
 A case decided in Indiana, by Judge Morris, and 
 reported in the Jurist, has been cited by the counsel 
 for the respondent, as having a bearing adverse to the 
 petitioner’s claim. The decisions in the Indiana 
 Courts are rarely referred to here. And I may add, 
 without intentional disrespect, that I have been una¬ 
 ble to ascertain who Judge Morris is. The case there 
 was decided, as appears, in favor of the freedom of 
 the slaves. The remarks of the Judge, relied on by 
 my learned brother, were not called for by the cir¬ 
 cumstances of the case, and may be considered extra¬ 
 judicial. The opinion appears to involve evident mis¬ 
 takes of law. For example, the Judge declares, that 
 where a citizen of a slave State is travelling upon 
 business or pleasure attended by his slave, ‘ an escape 
 from the attendance upon the person of his master, 
 while on a journey through a free State, should be 
 considered as an escape from the State, where the 
 master had a right of citizenship, and by the laws of 
 which the service of the slave was due.’ I need not 
 say how entirely this mode of enlarging by construc¬ 
 tion the scope of the constitutional provisions respect¬ 
 ing fugitives, militates with settled law. Indeed it 
 does not seem very consistent with other portions of 
 the Judge’s own reasoning. 
 
 This loose way of construing the Constitution has 
 not met much favor in the Northern States. The 
 constitution provides, that ‘ a person charged in any 
 State with treason, felony, or other crime, who shall 
 flee from justice, and be found in another State, shall, 
 on demand of the executive authority of the State 
 from tchich lie fled, be delivered up, to be removed to 
 the State having jurisdiction of the crime.’ A grand 
 jury in Alabama, about a year since, indicted R. G. 
 Williams, a citizen of New-York, for having publish¬ 
 ed, in a newspaper called ‘ the Emancipator,’ the fol¬ 
 lowing ‘insurrectionary’ words: ‘God commands, 
 and all nature cries out, that man should not be held 
 as property. The system of making men property, 
 has plunged 2,250,000 of our fellow countrymen into 
 the deepest physical and moral degradation, and they 
 
 (4) Corifl. Laws 92. Observe that the present tense, 
 pervades, is used. I understand the author to assert 
 that, with the single exception of the case of fugi¬ 
 tives, the English rule is now actually operating here. 
 
 (1) 4 Serg. & R. 305. 
 
 (2) 17 Mart. Rep. 598. 
 
 (3) 9 Amer. Jurist 490. 
 
26 
 
 Ellis Gray Loving, Esq., for the Petitioner. 
 
 are every moment sinking deeper.’ The Executive 
 of Alabama demanded the delivery of Williams, to 
 answer to this charge in Alabama ;—but it being no¬ 
 torious that he had never been in that State, and could 
 not therefore have ‘ fled ’ from it, the Governor of 
 New York, after consulting with his law advisers, 
 very properly refused the application. The Gover¬ 
 nor’s letter maintains very ably, that the provision 
 of the constitution is to be construed strictly. 
 
 The claim set up by the slave master in the Indi¬ 
 ana case, is readily distinguished from the present. 
 The master only claimed there the right to pass with 
 his slaves, from one slave State to another, thiough a 
 free Statea mere transit, not, as here, a needless 
 residence. It is possible that comity may depend in 
 some degree on locality. The geographical position 
 of Indiana, lying between Kentucky and Missouri, 
 may be thought to present some apparent necessity 
 for relaxing in certain cases, the domestic rule against 
 slavery. No such necessity exists here, and consid¬ 
 erations of convenience, as well as of law, urge us to 
 adhere to our ancient policy. 
 
 The comity asked in the present case is not toward 
 a mere transitus, but is to be extended to-a tempora¬ 
 ry residence. Now these are widely different ques¬ 
 tions. A transit is a thing well understood and ea¬ 
 sily determined. What is temporary residence, is a 
 far more difficult enquiry. The doctrine of' domicil;’ 
 questions of the quo animo, or intention, these con¬ 
 duct to dubious and intricate ground. How long may 
 the temporary residence continue ? Recollect we 
 have no legislative limitation, as in New York and 
 Pennsylvania. Why may not citizens of the slave 
 States remain here with their slaves ten years as well 
 as ten months, if the animus revertendi be preserv¬ 
 ed ? What security have we that the fields of Mas¬ 
 sachusetts may not be tilled by slaves ? 
 
 It is stated in Sommersett’s case, that there were 
 then fifteen thousand slaves in England. Lord Mans¬ 
 field estimates the apprehended loss to their masters, 
 at 700,000/. sterling, and expresses great solicitude as 
 to the consequences of ‘ setting them loose.’ There 
 are not probably twenty persons held as slaves in 
 Massachusetts, to be affected by your decision. 
 
 If slavery is introduced at all, in the case ofsojourn- 
 ers, why should we not introduce it, as it exists in 
 the Southern States ? The learned counsel has in¬ 
 deed most prudently restricted the master’s claim. 
 But why should he do so ? Has he not said that the 
 personal capacity or incapacity of foreigners as be¬ 
 tween themselves attends them here,— and sticks like 
 the shadow—‘ sicut umbra sequitur’ ? Besides, in 
 avowing that he claims to carry this child back into 
 slavery, he admits the intention of doing her a far 
 greater injury than mere beating. If she is to be 
 
 robbed of her liberty, all other losses are in compari¬ 
 son, but trifling. And such is the view taken by our 
 law. Kidnapping, or imprisoning with intent to kid¬ 
 nap, is one of the highest crimes. The greatest cru¬ 
 elty of all is contemplated here, namely, the removal 
 of the child to a place where slavery, with its usual 
 features, will again attach upon her. 
 
 The force of Lord Mansfield’s remark cited by the 
 respondent’s counsel, is certainly unimpaired by the 
 criticism we have listened to. ‘ The difficulty of adopt¬ 
 ing the relation, without adopting it in all its conse¬ 
 quences, is indeed extreme.’ (1) The learned coun¬ 
 sel has limited the slave-master’s claim to the utmost, 
 —yet let us see what it still includes. It must in¬ 
 clude the right absolutely to direct the slave’s locomo¬ 
 tion,—here is one incident of slavery ; to confine his 
 person,—there is another ; to exact his labor without 
 wages, (for the case must find that he comes as ‘ a per¬ 
 sonal attendant,’)—this is a third ; to compel submis¬ 
 sion here, by any degree of personal violence that 
 may be found necessary, and to force him out of Mas¬ 
 sachusetts, if persuasion should fail, by the cogent aid 
 of the whip or the fetter. Are not these the hateful 
 features of slavery ? If the slave should marry while 
 here, he must, of course, be separated from his wife. 
 Here is the old, familiar process of the slave-trailer. 
 No,—all the learned counsel’s ingenuity could not 
 shew an English or a Massachusetts Court, how to 
 adopt the relation without adopting its most abhorrent 
 consequences. And the reason of this is obvious.— 
 Slavery is an abuse. It is not a thing to be reformed 
 or regulated. Take away its incidents of oppression 
 and baseness, and it is all gone. So far as it exists at 
 all, it exists for evil. We have been.told that no prac¬ 
 tical evil is found to occur in New York or Pennsyl¬ 
 vania, from allowing a temporary existence to slavery 
 in the case of sojourners. Having no evidence be¬ 
 fore us on this point, we can only form an a priori 
 judgment. I do not doubt that great, that irreparable 
 evil occurs wherever slavery is tolerated, be it for a 
 century or for a day,—and I conceive this to be the 
 doctrine of Massachusetts. We hear no complaints, 
 it is said, from those States. True; neither do we 
 hear any complaints against slavery, from Georgia or 
 Louisiana. Evil may be their good. Supposed pecu¬ 
 niary advantages may with them outweigh moral 
 ones. I judge them not. It is enough to say that, as 
 a sovereign State, Massachusetts does not borrow her 
 views of slavery from States that may deem it right, 
 or pleasant, or profitable to allow it. 
 
 The condition of a Louisiana slave, held as such in 
 Massachusetts, is anomalous. We have no common 
 law to regulate it. My learned brother has laid down 
 the principle, that it will be the province of the judi- 
 
 (1) 20 How. St. Tr. 79. 
 
EUis Gray Loving, Esq., for the Petitioner. 
 
 27 
 
 cial tribunals, and not of the Legislature, to do this. 
 What then are to he the rights and duties of this very 
 peculiar member of oursociety ? Can he make a con¬ 
 tract :’ Will you give effect to his marriage ? Or shall 
 it be void, and his children illegitimate? Are the 
 children of the slave mother born here to be also 
 slaves ? Or will their father, if he should be a free 
 citizen of Massachusetts, be entitled to his own chil¬ 
 dren ? If the slave see a crime committed by his 
 master, shall he be admitted as a witness? Alas (or 
 the slave, if he testify against his master ! The ex¬ 
 clusion of slave testimony is an indispensable part ot 
 the institution of slavery. If a slave in Massachu¬ 
 setts is slandered, has he a remedy ? Is his character 
 his own ? If he is assaulted by a stranger, has he his 
 action as a person, or is it with the master, as for an 
 injury to property ? Shall there be any protection 
 for the slave against his master ? May the masterbe 
 bound to keep the peace towards him ? Probably not ; 
 for in the case of an adult, the utmost violence might 
 be necessary to compel submission. There can be no 
 divorce between such parties, for cruelty ;—no cancel¬ 
 ation of indentures, for abuse of authority. A slave 
 has no civil rights. Even to maim or murder him, is 
 only an offence against Government: and is punished 
 on the same principle that we forbid cruelty to brutes, 
 —not for their sakes, but for our own. If the slave 
 refuse to leave the State, how shall he be compelled ? 
 Will you justify an assault and battery upon him ?— 
 Suppose he kill his master in self-defence ; is his 
 crime murder ? How far will this Court go, in giving 
 validity to contracts for the hiring or sale of slaves 
 here ? If one stranger sells to another the slave he 
 has brought with him, and does not deliver him, will 
 you sustain trover for a human being ? Or, sitting as 
 a Court of Equity, will you enforce specific perform¬ 
 ance of a contract for the sale of a fellow creature, 
 thus making the Supreme Court an instrument in the 
 domestic slave-trade ? 
 
 These consequences seem indeed revolting, but 
 they are in character with the system to which they 
 belong. 
 
 I have thus endeavored to show that the extension 
 of slavery here is unlawful and inexpedient. It is 
 
 cause for the sincerest gratification, to reflect that 
 this question, important to our whole country, is to be 
 left in the hands of the judiciary of Massachusetts. 
 The eloquent encomium of Sir William Best, on the 
 Courts of his own country, will not be thought inap¬ 
 plicable here, by the friends of freedom, looking, at 
 they will, with anxious hope, to the decision of thil 
 tribunal. 
 
 ‘ It is matter of pride,’ says that eminent judge, 
 ‘ for me to recollect, that whilst economists and politi¬ 
 cians were recommending to the Legislature the pro¬ 
 tection of this traffic, and senators were framing law# 
 for its promotion, and declaring it a benefit to the coun¬ 
 try,—the judges of the land, above the age in whim 
 they lived, standing upon the high ground of natunl 
 right, and disdaining to bend to the lower doctrine f 
 expediency, declared that Slavery was inconsistet 
 with the genius of the English Constitution, and tht 
 human beings could not be tbe subject matter of pro- 
 erty. As a lawyer, I speak of that early determinl- 
 tion, when a different doctrine was prevailing in th 
 Senate, with a considerable degree of profession} 
 pride.’ (1) 
 
 The generous boast of the English poet haunts tfe 
 memory of every lover of liberty : 
 
 ‘ Slaves cannot breathe in England :—if their lungs 
 Receive our air, that moment they are free. 
 
 They touch our country, and their shackles fall— 
 That’s noble, and bespeaks a nation proud 
 And jealous of the blessing.— ’ 
 
 This exalted pride cannot be fully ours. We havi 
 sold it for a price. The fugitive from slavery i; 
 hunted like a felon, through this favored State. Lei 
 us stop there. Let not the accursed system thrive 
 among us. If we are to be restrained from attacking 
 the giant trunk,—if we have even consented to let > 
 single bough shoot over among us, to taint our air,— 
 
 I trust by the blessing of Heaven, we have yet 
 strength and virtue enough to lop its luxuriance.— 
 God forbid that the deadly branches should bend over 
 and strike root, to become in their turn, a parent- 
 stock, growing up in the soil of Massachusetts. 
 
 (1) Forbes v. Cochrane. 2 Barn. & Cr, 470, 
 
HON. RUFUS CHOATE, FOR THE PETITIONER. 
 
 Hon. Rufus Choate followed, for the Petitioner, 
 tnd, after remarking that his colleague had exhaust- 
 rd the subject, and that he intended to argue on 
 aiore narrow grounds—said that the proposition con¬ 
 tended for by the counsel for the Respondent was 
 this : that an inhabitant of a slaveholding State may 
 irinj his slave into Massachusetts, may restrain 
 lim here as a slave for an indefinite period—for any 
 priod that should not absolutely domiciliate the 
 raster,—and may carry him by force back again 
 iito slavery, when he returns. 
 
 He said, the extent to which this principle might 
 Tactically be carried, could not fail to suggest 
 oubts of its soundness. If one planter may bring 
 ne slave into Massachusetts and so restrain him, 
 very one may bring any number of his slaves. If 
 e may hold him, through a summer’s residence, as 
 ; slave, he may cause him to labor as a slave, and 
 V all the means, under all the penalties, by which 
 lave labor is exacted in Louisiana. All the ind¬ 
 ents of slavery must accompany the relation. The 
 1 w of Massachusetts did not recognize slavery, and 
 tierefore could not regulate it. It must exist here 
 iist as it exists in Louisiana. It must exist here 
 inder the law of Louisiana, admitted by comity, and 
 .ccordinir to that law. Such was Lord Mansfield’s 
 •pinion, as expressed in Sommersett’s case. The 
 consequence might be, that slavery, in its most of¬ 
 fensive forms, might be practically administered in 
 Massachusetts. It will be proper to discuss the 
 question in a historical and chronological order. 
 
 What was the law of Massachusetts upon the sub¬ 
 ject, before the adoption of the Federal Constitu¬ 
 tion—and how far did the adoption of that instru¬ 
 ment change it ? 
 
 And he would state the first question, thus :—is 
 there any evidence or any ground for the Court to 
 presume, that, when the State of Massachusetts, be¬ 
 tween the years 1770 and 1783, abolished the insti¬ 
 tution of domestic servitude, she letained or adopt¬ 
 ed the principle, that a foreign slaveholder might 
 bring his slaves within her territory,—restrain and 
 treat them as slaves, as long as he pleased to stay, 
 not gaining a domicil, — and carry them away 
 again by force into slavery ;—and that, to a habeas 
 corpus sued by the slave in her domestic courts, the 
 master might plead the foreign law of slavery ? 
 
 There is no such evidence, and no ground for 
 •ueh presumption. He contended, on the contrary, 
 
 that it was entirely clear, that, when domestic sla¬ 
 very was abolished in this State, it became at once 
 part of its jurisprudence that no foreign law of 
 slavery thenceforward could have any effect or op¬ 
 eration, or be in any manner recognized against a 
 slave asserting his liberty in her courts,—that, to a 
 foreign law of slavery, comity was not to be extend¬ 
 ed,—that, in this conflict of foreign and domestic 
 laws, the former must yield. 
 
 He argued in support of this proposition, on sev¬ 
 eral grounds. In the first place, at the time when 
 this State abolished slavery, it was a well settled, 
 well known principle of the law of England, that, 
 when a nation ceases to tolerate the existence of 
 domestic slavery, a foreign law of slavery cannot be 
 set up in its courts against a slave asserting his lib¬ 
 erty on the domestic law,—in other words, that the 
 comity of nations does not require or justify any 
 tolerance of a foreign law of slavery. This was set¬ 
 tled in Sommersett’s case. That case decided two 
 points first, that the institution of domestic sla¬ 
 very did not exist in England— second, the general 
 principle, that comity cannot be applied to a foreign 
 law of slavery coming in conflict with the domestic 
 law of liberty. 
 
 It is argued on the part of the respondent that no 
 principle concerning the comity of nations was set¬ 
 tled in Sommerselt’s case—because it is said that 
 the phrase, comity of nations, imports respect paid 
 to the law of a foreign and independent nation,— 
 that the British West Indies are not independent of 
 England. But this is not so. The comity of na¬ 
 tions, as the phrase is universally understood in the 
 books of law, means a respect paid to a foreign law 
 a lex loci —whether of an independent State or a 
 State not independent. It does not suppose 
 a conflict of independent nations, but a conflict 
 of codes. It is a respect paid not to a nation because 
 she is independent and may go to war, but it is paid 
 according to a general principle of justice to every 
 community, so considerable and so distinct, as to 
 have a local judicature and local courts. Thus the 
 respect paid in England to the local law of Scotland, 
 is paid by the comity of nations. Mr. Hargrave’s 
 argument and the language of the court plainly 
 show that the question whether the lex loci of the 
 West Indies should be allowed to be pleaded against 
 the domestic law, was discussed as a general ques¬ 
 tion concerning the comity of nations,and that it was 
 
Hon. Rufus Choate, for the Petitioner. 
 
 2S 
 
 decided against the lex loci —not because the West 
 Indies were not independent of England, but be¬ 
 cause no foreign law of slavery, of whatever nation, 
 can be set up against the domestic law of freedom. 
 
 This having been the settled law of England, at 
 the time we abolished slavery, it became instantly 
 part of our law. The second point adjudged in 
 Sommersett’s case was authority here. It was de¬ 
 cided before the Revolution. It settled and ascer¬ 
 tained a great general principle of the common law 
 applicable to the Conflict of Laws, and so soon as 
 that principle became applicable to our circumstan¬ 
 ces—that is, so soon as we abolished slavery—it had 
 instantly the force of authority. Whether it had 
 the force of authority or not, there was the most sat¬ 
 isfactory evidence, that it was adopted here. As a 
 general rule, whenever a principle is shewn to have 
 been part of the common law of England at any giv¬ 
 en period before the revolution, it is to be presum¬ 
 ed to have been part of the law of the Colony or 
 Frovince of Massachusetts, at the same period, if 
 applicable to its circumstances. If the inquiry is, 
 what was the law of Massachusetts in 1774, we re¬ 
 fer to the decisions of Westminster Hall of that time, 
 to ascertain it. When slavery was abolished here, 
 therefore, is is to be presumed that we adopted the 
 principle which forms the second point decided in 
 Sommersett’s case. 
 
 This presumption is. strengthened by historical 
 evidence. The historians of Massachusetts, and 
 Dr. Belknap, in his letter to Judge Tucker,(1) prove 
 that slavery had been nearly or altogether abolished 
 before the revolution. The cfese of Sommersett was 
 re-printed and circulated here—it was cited in the 
 courts. Negroes were encouraged by it to sue for 
 their liberty—and the Courts of Justice, long before 
 the State Constitution (as early as 1770) universal¬ 
 ly sustained their claim. Was it to be believed, 
 that, when we thus by acclamation adopted one part 
 of the doctrine in Sommersett’s case, we rejected 
 the other? That, when we followed the splendid 
 example of England, and declared that our own cit¬ 
 izens should not pollute our soil with slaves, we did 
 not also follow the entire example, by declaring that 
 foreigners should not do what was forbidden to our 
 citizens ? 
 
 The principle was applicable to our circumstan¬ 
 ces at that time—it accorded perfectly with our 
 known feelings and dispositions on the subject of 
 slavery—the public mind was fully prepared for it— 
 and it cannot be doubted that it was adopted. It 
 might be added, that there was not the slightest ev- 
 
 (1) In the Massachusetts Historical Collections. 
 See also, Bradford’s History of Massachusetts, 
 
 idence of any local law of Massachusetts on this 
 subject different from the law of England—there 
 were no decisions and no practice and no recollec¬ 
 tions of court or counsel to shew it. There was 
 nothing in our relations at that time to the othei 
 Colonies to induce a presumption that we shoulc 
 refuse to adopt this principle of English law, 'rom 
 any disposition to favor their system of slavery L 
 is notorious, that we were hostile to those systems, 
 and that ill blood was excited between the Norlhern 
 and Southern Colonies, on the subject of slavery, 
 before and during the revolution. This feeling man¬ 
 ifested itself strongly during the discussion on the 
 articles of confederation. It is well known, that 
 some of the free States even refused to permit slave¬ 
 holders to follow fugitive slaves into their territo¬ 
 ries. Can there be stronger evidence that they did 
 not adopt any such principle of comity as is here 
 contended for—and did adopt the whole doctrine of 
 Sornmersett’s case ? The state of feeling,—in the 
 Convention which formed the Federal Constitution, 
 and in the Conventians of the fiee States which 
 adopted it,—touching the question of slavery, is 
 matter of history. 
 
 Stronger reasons existed, why England should 
 have respected the ex loci of her own West India 
 islands concerningslaves, than that we should have 
 respected the lex l>ci of the other Colonies. Eng¬ 
 land had made tin lex loci of the West Indies ; she 
 hadreared up shvery there ; she had, in various 
 ways, through ter legislation and by her public offi¬ 
 cers, invited he: West India subjects to bring their 
 slaves to England, on the assurance that their prop¬ 
 erty in them siould be respected. Many thousands 
 of them were there, at the time Sommersett’s case 
 was decided whom that decision instantly enabled 
 to set themselves free. It must have been a clear 
 and energetic principle of the English law, which 
 asserted itself against all these interests and consid¬ 
 erations. It could not be pretended that we were 
 under any such obligation—as that of England to 
 her West Indies—towards the Southern Colonies 
 of this Country. We had nothing to do in forcing 
 slavery upon them, and without injustice or discour¬ 
 tesy, might exclude it from our territory. 
 
 An additional ground of presumption that the doc¬ 
 trine of Sommersett’s case was adopted here, is, 
 that it was even then the doctrine of every code of 
 Europe. It is part of the universal jurisprudence 
 of all civilization, and not merely of the common 
 law of England. Authorities cited in Mr. Har¬ 
 grave’s argument, and Mr. Justice Story’s authori¬ 
 tative and masterly work on the Conflict of Laws 
 fully sustain this position. No State in Europe, 
 
50 
 
 Hon. Rufus Choate, for the Petitioner. 
 
 laving abolished slavery at home, though permit¬ 
 ting it in its colonies, allows the colonial law of sla- 
 7 erytobe pleaded against the slave asserting his 
 Ibeity in the domestic court; and none did so at the 
 lime slavery was abolished here. How was it to be 
 pretended, that we disregarded the universal exam¬ 
 ple? 
 
 An examination of the general principles, by 
 which the extension of comity to a foreign law is 
 admitted to be regulated, will shew that it is impos- 
 sible that Massachusetts should have introduced in¬ 
 to lie: code the principle of comity here contended 
 for. Those general principles are clearly stated by 
 Mr. Justice Story in his ‘ Conflict of Laws.’ It ap¬ 
 pears to be clear that comity is not to be applied to 
 a fore gn law which is contrary to morality. . Now 
 in the judgment of the law of Massachusetts as it 
 stood in 1769, slavery was contrary to morality. 
 The Constitution of Massachusetts (its paramount 
 law) asserted the great principle that all men are 
 born free, and that the righ'. to liberty was inalien¬ 
 able It follows that to depfve one of that liberty 
 is unjust, and contrary, of eoirse.to morality. By 
 the law of Massachusetts, ther, as declared in 17S0, 
 slaveholding is immoral. IVtat sort of comity is 
 that, which compliments a foreigier with the license 
 to commit what the law declare to be a crime, if 
 committed by an inhabitant ? Ctmity is only poli¬ 
 cy and courtesy—and is never It be indulged, at 
 the expense of what the State, as aState,by its pub¬ 
 lic law, declares to be justice. 
 
 Dr. Belknap stales, in his lettei before referred 
 to, that the clause before cited from he Declaration 
 of Rights, (the inalienableness of J.berty) was in¬ 
 serted expressly to put the abolition ct slavery on a 
 general principle, that is, upon the principle that 
 slavery is unjust—immoral—against natural rights. 
 That this sentiment of the law of Massachusetts is 
 further manifested by the statute of 1789, c. 48. It 
 may be added that every historian of tint time as¬ 
 serts, and every well-informed man in tlie commu¬ 
 nity now believes, that by the public sentiment of 
 Massachusetts of that time, slavery was held unjust 
 and criminal. 
 
 Comity to a foreign law, upon the general princi¬ 
 ples which regulate it, never is extended so far as 
 to permit a foreigser to do with impunity that which 
 the domestic criminal law punishes in a citizen. 
 But if a foreign mastei may, on the foreign law, re¬ 
 strain his slave here for the purpose of carrying him 
 back to slavery, and the slave should make an efl'oit 
 to escape, and, in the struggle, his master should 
 kill him, the act would necessarily be innocent, ex¬ 
 cusable, or justifiable. The same act, committed by 
 a citizen of Massachusetts, would be murder. This 
 
 license to a foreigner, to be exempted from a domes¬ 
 tic criminal law governing the citizen, may be given 
 by special and arbitrary dispensation, but can never le 
 the result of general principles. 
 
 It was also to be observed, that no decision of any 
 court of any free State had been produced to shew 
 that a different doctrine had been holden elsewhere. 
 The opinion of Judge Morris, so far as it bears on this 
 question, was an obiter dictum, and is no evidence 
 of the law of Indiana. The point in judgment he 
 decided rightly. The special legislation of some free 
 States, for the protection of the master’s property in 
 slaves during a temporary residence, has no tendency 
 to shew that the common law of those States would 
 allow that protection— hut implies that it would not. 
 It can have no tendency to illustrate our common 
 law. Decisions are referred to, that slaves, who have 
 been carried by their masters into a free State, tem¬ 
 porarily restrained there, and brought back to a slave 
 State, (having, while in the free State, made no as¬ 
 sertion of their liberty by writ.) may be holden as 
 slaves, that is, that a temporary residence in a free 
 State, unaccompanied by a suit for liberty there, could 
 not be set up, on their return to the slave State, against 
 the title of the master. But this had not the slightest 
 tendency to shew, that if the slave had sued for his 
 liberty, while in the free State, his claim must not 
 have been allowed. The same doctrine is holden in 
 the Admiralty Court of England, where, however, 
 the doctrine of Sommcrsett’s case is admitted to be 
 settled law.- 
 
 On these grounds it is submitted, that the court 
 will presume and declare, that up to the adoption of 
 the Federal Constitution, it was a principle of the 
 common law of Massachusetts after she had abolished 
 slavery, that national comity was inapplicable to a 
 foreign law of slavery set up in her courts against a 
 person asserting his liberty under the domestic law. 
 
 2.—The next question is, to what extent did the 
 adoption of the Federal Constitution change the com¬ 
 mon law of Massachusetts ? 
 
 It made just such a change, as the terms of that in¬ 
 strument, justly construed, created—and no more. 
 All grants of power to the general government or to 
 the other States, all prohibitions upon the power of 
 this State, are to be justly construed and enforced ; 
 and beyond that, the court will say, the common law 
 of Massachusetts underwent no change. If, before 
 the adoption of that instrument, the common law of 
 Massachusetts did not extend comity to any foreign 
 law of slavery, it docs not now, unless the terms of 
 the constitution, properly construed, require it to do 
 so. All schools of construction must pdmit this prin¬ 
 ciple. 
 
31 
 
 Hon. Rufus Choate, for the Petitioner. 
 
 Then, there is no clause in the constitution, giving 
 to this roaster the right to assert the law of Louisiana 
 against the law ol Massachusetts, and prohibiting 
 Massachusetts from asserting her common law, under 
 the circumstances of the case now before the court. 
 The provision concerning fugitive slaves is admitted 
 to be inapplicable. The decision of Mr. Justice Wash¬ 
 ington and of the court of Louisiana itself are directly 
 in point. The case, then, of a master voluntarily 
 bringing his slave here, stands on the old, unaltered 
 law of Massachusetts. 
 
 To assert that the new relations and closer union 
 created by the Federal Constitution required a comi¬ 
 ty to the local law of slave States, which did not ex¬ 
 ist before, avails nothing. The court will require ev¬ 
 idence, that this State determined, upon the adoption 
 of the constitution, to extend such comity. But there 
 is no evidence of an intention to do any thing,to give any 
 thing, but the constitution itself. There is no legislation 
 showing such intention. It was well known, too, that 
 what the constitution actually conceded on this subject, 
 the free States conceded reluctantly, and on the princi- 
 
 4 
 
 pies ef compromise. To imply concessions beyond 
 such a grant, accompanying it but not named in it, 
 would be wholly inadmissible. 
 
 It was said, since the adoption of the constitution, 
 we are not at liberty to say, that slaveholding is im¬ 
 moral. But it has been shown, that, by the law of 
 Massachusetts before the constitution, slaveholding 
 was declared immoral, and abolished ; and the princi¬ 
 ple of the inapplicableness of comity to foreign laws 
 of slavery settled. We do not, by the constitution, 
 falsify our legal history. We do not, by the consti¬ 
 tution, declare that it is moral or lawful to do any 
 thing more within our territory, than to arrest a fugi¬ 
 tive slave, and take him at once away. Beyond that, 
 the legal morality of Massachusetts is unchanged. 
 All other acts and incidents of slaveholding are by our 
 law as immoral as ever. Legal Morality, so to speak, 
 like all the parts of law, is arbitrary, conventional, and 
 of positive institution, to a great extent. The gov¬ 
 ernment of a country may declare the same act im¬ 
 moral in one part of its territory, and moral in another. 
 
CHARLES P. CURTIS, ESQ., FOR THE RESPONDENT. 
 
 Mr. C. P. Curtis remarked,in reply to Mr. Choate, 
 that we should keep clearly in view the point pre¬ 
 sented on this return. The point is that a citizen of a 
 State of this Union, in which slavery is tolerated, who 
 comes here for business or pleasure, bringing a slave 
 with him, may retain the slave and take him away 
 when he returns to his own State, and this will be no 
 violation of the laws of Massachusetts. 
 
 It is conceded that this child is a slave by the law 
 of Louisiana. Moveable property accompanies the 
 proprietor in his change of domicil, and its rights fol¬ 
 low his person like his shadow. What is the law of 
 property in his own country, is as to him, the law in 
 the country which he visits. 
 
 It has not been denied that it is the province ol the 
 courts to decide how far a foreign law shall by com¬ 
 ity be introduced here. If the court may decide on 
 the admission of the foreign law, it may modify that 
 law. The court would allow the slaveholder to take 
 away his slave, but not to beat him, or exercise over 
 him any authority,(except that of necessary restraint,) 
 which though lawful at home, would be unlawful 
 here. 
 
 The principles of international law are broad enough 
 to admit comity to apply in this case. The case of 
 Madrazo, in Barnwell and Alderson, recognises a 
 right of property in slaves. It is true that some years 
 after, Mr. Justice Best, one of the Judges who decid¬ 
 ed that case, indulged in some remarks at variance 
 with this decision, but they were uncalled for by the 
 occasion on which they were uttered, and only went 
 to show his private opinion. In the case of the Ante¬ 
 lope, 10 Wheaton, it was decided by the Supreme 
 Judicial Court of the United States, that the Spanish 
 claimant should recover the slaves that had been ta¬ 
 ken from his vessel and which were identified, and 
 the demand of the Portuguese Consul was refused 
 only on the ground that he furnished no evidence 
 that any of the slaves belonged to Portuguese sub¬ 
 jects. Thus the slaves were clearly recognized as 
 legal property. The claimant of such property may 
 not, in the opinion of some, have a moral right to hold 
 it, but the question here to be settled is, not what a 
 moralist would say of the claim, but what is the law ? 
 
 In a court of law the morality of an act is to be 
 judged of by a legal standard. So say Sir Wm. Scott, 
 and Ch. J. Marshall. Is it immoral, then, judging 
 by such standard, to send this child back to Louisiana ? 
 
 In the case of the Commonwealth v. Griffith,(1) it 
 was decided that in the case of a fugitive slave, this 
 court are to give a certificate to enable the master to 
 take back his property. Is that to be considered im¬ 
 moral, which the court is bound to assist in doing ? 
 
 The junior counsel relies on the constitution of Mas¬ 
 sachusetts, which asserts that all men are born free 
 and equal. Suppose it to be true that under this con¬ 
 stitution it was illegal to hold slaves, yet a change has 
 since been made by the adoption of the constitution 
 of the United States, and it is not for us now to de¬ 
 nounce as legally immoral, a practice which is per¬ 
 mitted and sanctioned by the supreme law of the land. 
 But it is said the United States constitution was a 
 compromise. True. There was a compromise as to 
 the mode of raising the revenue, and as to the ratio of 
 representation, &.e., and notwithstanding the alleged 
 immorality of slavery, we all accede to a compact by 
 which slaves are allowed to be represented. The law 
 of Massachusetts was changed by that instrument, so 
 that even if according to our law, slavery were im¬ 
 moral before 1789, it is not so now. Admitting that 
 slavery was abolished in Massachusetts in 1770, the 
 conclusion is not affected by the admission. 
 
 It is said there can be no reciprocity in this matter 
 between us and the north, for we have no slaves, and 
 therefore Louisiana cannot return the favor here ask¬ 
 ed. It is true that the favor cannot be reciprocated 
 exactly in kind, but there may be cases in which the 
 courts of Louisiana may he called on to aid a citizen 
 of Massachusetts, as in reclaiming a fugitive wife or 
 son, or in seizing a party for whom he was bail. Could 
 the courts there say in such a case, that they had in 
 Louisiana, no law of the kind sought to be enforced, 
 and so there could be no reciprocity, and on that 
 ground refuse their assistance ? It may be said that 
 in the case of a wife or the principal in a bail bond, a 
 contract exists, but there is no contract in the case of 
 a son. 
 
 As to the case of the slaves cast upon the Bermu¬ 
 das and set free by the courts of that island, it is said 
 that their emancipation has been submitted to without 
 remonstrance on the part of our goverment. IIow r do 
 we know that ? How should we learn it, if remon¬ 
 strances had been made ? Are diplomatic measures 
 sounded with a trumpet through the land ? But we 
 do not know the circumstances of that occurrence ex¬ 
 cept by public rumor. If the facts are as rumor has 
 reported them, it was a most extraordinary act—that 
 
 (1) 2 Tick. Kep. 11. 
 
Charles P. Curtis, Esq., for the Respondent. 
 
 33 
 
 the property of a friendly nation, cast on shore by a 
 storm, should be forcibly taken away from the own¬ 
 ers. The books are full of cases of every other spe¬ 
 cies of property, in which it has been held that, so 
 circumstanced, it should not be confiscated. The 
 case in the 10th Wheaton, is exactly like the Bermu¬ 
 da case, and the courts of the United States restored 
 the property to the owners. So that the Bermuda 
 law, if rightly reported, conflicts with ours. 
 
 We have been reminded of the southern laws, hy 
 which colored cooks, seamen, &c. on board our ships 
 coming into the ports of slave States, are imprisoned. 
 But their laws have been adjudged unconstitutional 
 and void. Mr. Justice Johnson, one of the Judges of 
 the Supreme Court, liberated those who were impris¬ 
 oned under these laws, and the laws themselves have 
 since been altered. No instance of such imprison¬ 
 ment, we believe has occurred since Judge Johnson’s 
 decision, and probably no more will occur. 
 
 [Putnam J. I know of one instance which has oc¬ 
 curred within three or four years, at Charleston.] 
 
 It is said that there is no room for comity, where 
 the subject has been made a matter of express regu¬ 
 lation, and that the express provision in the constitu¬ 
 tion as to one case, excludes all others. But we think 
 there was a good reason for inserting that provision, 
 which does not extend to this case. That was to meet 
 a case, in which the active interposition of the court, 
 was required. Here we do not ask any interposition 
 of the court, except to leave the individual just where 
 it finds him. This we think a sufficient answer to the 
 remark that comity does not apply, because the sub¬ 
 ject has been one of express regulation. In the case 
 in Barnwell and Creswall before cited, this same dis¬ 
 tinction was taken, between making the law of Eng¬ 
 land active, and leaving it passive. 
 
 It is said the court may be called upon to justify 
 polygamy or infanticide, if it should he decided that 
 the lex loci should prevail. We reply that it has pow¬ 
 er to say that the lex loci which permits crimes, shall 
 not prevail here. 
 
 In the case cited on the other side, from the 2. Barn¬ 
 well and Creswall, the court rely on the fact that the 
 Plaintiff was a British subject. 
 
 [Loring.—We do not so understand it. Forbes was 
 considered for the purpose of that case, a Spanish sub¬ 
 ject.] 
 
 Curtis proceeded. It is said the practice of slavery 
 is corrupting in its influence on public morals. But 
 the practice of bringing slaves here, was much more 
 common thirty years ago, than now. If this practice 
 be so corrupting, why is it tolerated in other States ? 
 Does its corrupting influence stop at the line of Rhode 
 Island, where the slaveholders congregate every sum¬ 
 
 mer in considerable numbers? The law of New 
 York allows even foreigners to go there with their 
 slaves ; and have the morals of that State suffered in 
 consequence ? In Pennsylvania, too, the law is sim¬ 
 ilar, but where is the evidence of its pernicious influ¬ 
 ence there ? If the supposition be correct, however, 
 it is merely an argument to be addressed to those who 
 are to change the law, not to this court, whose sole 
 business is to declare it. 
 
 Buchell’s case has been introduced on the other 
 side. That was an application for a certificate, and 
 was refused because the master had voluntarily brought 
 the slave to a free State, and therefore he was not a 
 fugitive. So of the case in 2. Sergeant and Rawle, 
 305. The mother was restored to the claimant, but 
 the child having been born in Pennsylvania, was held 
 not to be a fugitive. In both those cases, the active 
 interposition of the court was claimed. 
 
 Suppose it is decided that the master may take his 
 slaves back with him, is it not for their advantage to 
 be brought here ? May not the master be benefited 
 by coming here, and is not the chance to escape, 
 which coming here offers, a benefit to the slave ? In 
 fact, many have availed themselves of this chance, to 
 obtain freedom. 
 
 It is asked how long a slaveholder may remain 
 here, and retain his power to carry back his slaves on 
 his return ? We answer, until by remaining, he ac¬ 
 quires a domicil here. If this is not precise enough, 
 let the legislature fix the time, as other free States 
 have done. 
 
 It is said, that it was decided in Sommersett’s case, 
 that when slavery is abolished, the doctrine of comi¬ 
 ty ceases as to it. Hargrave does indeed so argue, 
 but there is nothing in Lord Mansfield’s opinion, to 
 that effect. That case did not present the question of 
 comity. It was a case in an English court, of a Brit¬ 
 ish subject claiming a right to own a slave. AVhere 
 is the comity of nations between England and her 
 colony ? As in a question as to the custom of London 
 or the custom of Kent, the court might listen to the 
 lex loci, but not to considerations of comity. 
 
 It is asserted that Sommersett’s case became the 
 law here. If so, why did it not also become law in 
 all the other colonies—in New York, New Jersey, 
 Pennsylvania, Connecticut, Rhode Island? Yet all 
 those States have had slaves long since Sommersett’s 
 case, and without regard to Lord Mansfield’s decision. 
 It is asked, if what is not permitted to our own citi¬ 
 zens, shall be allowed to those of other States ? 
 We permit strangers to make contracts which we 
 might not permit to our own citizens. Among others, 
 we allow them to contract for greater rates of inter¬ 
 est of money than we permit in contracts made here, 
 and our courts enforce such engagements. 
 
34 
 
 Charles P. Curtis, Esq., for the Respondent. 
 
 We do not deny that our legislature could declare 
 it unlawlul to bring slaves here. But till they do so, 
 we have only to take the law as it is. Our law, since 
 the constitution of the United States, stands on differ¬ 
 ent grounds from what it did before that compact; 
 the people of Massachusetts have recognized rights 
 in the citizens of other States changing materially our 
 relations. 
 
 It is said that though the members of the conven¬ 
 tion from the free States, who assisted in framing the 
 constitution, might have been willing to allow fugi¬ 
 
 tive slaves to be taken away from those States, yet 
 they might not be willing to let the master bring his 
 slaves into these States voluntarily, and use them 
 here. We do not, in this case, claim any other right 
 than that of needful restraint here, and in itinere, and 
 as to the right to using them, notwithstanding the 
 supposed horror at such an admission, the legislatures 
 of New York and Pennsylvania, Rhode Island and 
 New Jersey have actually enacted statutes allowing 
 precisely that very privilege. 
 
OPINION OF THE COURT. 
 
 August 27, 183G. 
 
 Shaw, C. J.—The question now before the Court arises 
 upon a return to a Habeas Corpus, originally issued m va¬ 
 cation, 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 ofher detention,and the causes for 
 which she was detained. By the provisions of the revised 
 code, the practice upon habeas corpus is somewhat alter¬ 
 ed. In case the party complaining, or in behalf of whom 
 complaint is made, on the ground of unlawful imprison¬ 
 ment, is not in the custody of an officer, as of a Sheriff or 
 deputy, or corresponding officer of the U. S., 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 
 parly alleged to have or claim the custody of such person, 
 to appear at the same time, and show the cause of the de¬ 
 tention. The person thus summoned is to make a state¬ 
 ment under oath, selling forth all the facts fully and partic¬ 
 ularly; 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 ma¬ 
 terial facts upon which the questions arise. Such return, 
 however, is not conclusive of the facts stated in it, but the 
 court is to 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 meantime bail the parly, or com¬ 
 mit 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 hv one Judge 
 of the court in vacation, and in the meantime, before a final 
 decision, the court shall meet in the same county, the pro¬ 
 ceedings 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 mi¬ 
 nutely, because there have been as yet but few proceed¬ 
 ings under the revised statutes, and the practice is yet 
 to be established. 
 
 Upon the return of this writ before Mr. Justice Wilde, 
 a statement was made by Mr. Aves, the respondent; the 
 case was then postponed. It has since been fully and 
 very ably argued before all the Judges, and is now trans¬ 
 ferred to and entered in court, and stands here for judg¬ 
 ment, in the same manner as if the writ had been origin¬ 
 ally returnable in court. 
 
 The return of Mr. Aves states that he has the body of 
 the colored child described in his custody, and produces 
 her. It further states that Samuel Slater, a merchant, cit¬ 
 izen and resident in the city of New Orleans and State 
 of Louisiana, purchased the child with her mother in 1833, 
 the mother and child being then and long before slaves by 
 the laws of Louisiana ; that they continued to be his 
 property, in his service, at New Orleans, till about the 
 first of May last, when Mary Slater, his wife, the daugh¬ 
 
 ter of Mr. Aves, left New Orleans for Boston, for the 
 purpose of visiting her father, intending to return to New 
 Orleans after an absence of four or five months; that the 
 mother of the child remained at New Orleans in a slate 
 of slavery, but that Mrs. Slater brought the child with her 
 from New Orleans to Boston, having the child in her cus¬ 
 tody as the agent and representative of her husband, 
 whose slave the child was, by the laws of Louisiana, 
 when the child was brought thence; the object, intent and 
 purpose of the said Mary Slater being to have the said 
 child accompany her, and remain in her custody, and un¬ 
 der her care during her temporary absence from New Or¬ 
 leans, and that the said child should return with her to 
 New Orleans, the domicil of herself and her husband; 
 that the said child was confided to the custody and care 
 of said Aves by Mrs. Slater, during her temporary ab¬ 
 sence in the country for her health. The respondent con¬ 
 cludes by slating that he has exercised no other restraint 
 over the liberty of this child than sueli as was necessary 
 to the health and safety of the child. Notice having been 
 given to Mr. and Mrs. Slater, an appearance has been en¬ 
 tered for them, and in this state of the case arid of the 
 parties, the cause has been heard. Some evidence was 
 given at the former hearing, but it does not materially 
 vary the facts staled in the return. The fact testified 
 which was considered most material was, the declared in¬ 
 tent of Mrs. Slater to take the child back to New Orleans. 
 But as that intent is--distinctly avowed in the return, that 
 is, to take the child back to New Orleans, if it could be 
 lawfully done, it does not essentially change the case 
 made by the return. 
 
 This return is now to be considered in the same aspect 
 as if made by Mr. Slater. It is made in fact by Mr. Aves, 
 claiming the custody of the slave in right of Mr. Slater, 
 and that claim is sanctioned by Mr. 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 Or¬ 
 leans, and whether the claim has been made in terms or 
 not to hold and return her as a slave, that intent is mani¬ 
 fest, 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 attend¬ 
 ing 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 re¬ 
 spondent is, whether a citizen of any one of the United 
 States, where negro slavery is established by law, coming 
 into this Slate, for any temporary purpose of business or 
 pleasure, staying some 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 continu¬ 
 ance 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 own¬ 
 er, than such as may be necessary to retain the custody 
 of the slave during his residence, and to remove him on 
 his return. 
 
36 
 
 Opinion of ilie Court. 
 
 Unlil this discussion, I had supposed that there had 
 been adjudged cases on this subject in this Common¬ 
 wealth^ and it is believed to have been a prevalent 
 opinion among lawyers, that if a slave is brought volun¬ 
 tarily and unnecessarily within the limits of this slate, he 
 becomes free, if he chooses to avail himself ol the pro¬ 
 visions of our laws; not so much because his coming 
 within our territorial limits, breathing our air, or treading 
 on our soil, works anv alteration in his status, or condi¬ 
 tion as settled bv the law of his domicil, as because by 
 the operation of our laws, there is no authority on the 
 part of die master, either to restrain the slave ol his lib¬ 
 erty, whilst here, or forcibly to take him into custody in 
 order to his 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 law's of this Commonwealth, be¬ 
 fore the adoption of the Constitution of the United Slates, 
 in 1789, slavery was abolished, as being contrary to the 
 principles of justice, and of nature, and repugna nt to the 
 provisions of the Declaration of Rights, which is a com¬ 
 ponent 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 Mas¬ 
 sachusetts. Bv a very early Colouial Ordinance. (1641) 
 it was ordered, that there should be no bond slavery, vil- 
 lenage, or captivity amongst us, with the exception of 
 lawful captives taken in just wars, or those judicially 
 sentenced to servitude, as a punishment f°r crime. And 
 by an act a few years after, (1646) manifestly alluding to 
 some transaction then recent, the General Court conceiv¬ 
 ing themselves bound to bear witness against the heinous 
 and crying sin of man stealing, &<*., ordered that cer¬ 
 tain negroes be sent back to their native country (Guinea) 
 at the charge of the country, with a letter from the Gov¬ 
 ernor expressive of the indignation ef the Court therea¬ 
 bouts. See Ancient Charters, &c. 52, chap. 12, sec¬ 
 tions 2, 3. 
 
 But notwithstanding these strong expressions in the 
 acts of the Colonial Government, slavery to a certain ex¬ 
 tent 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, prevail¬ 
 ing 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 bv this, that 
 by several provincial acts, passed at various times, in the 
 earlv part of the last century, slavery was recognized as 
 existing in fact, and various regulations were prescribed 
 in reference to it—The act passed June. 1703. imposed 
 certain restrictions upon manumission, and subjected the 
 master to the relief and support of the slaves, notwith¬ 
 standing such manumission, if the regulations were not 
 complied with. The act of October, 1705. levied a duty 
 and imposed various restrictions upon the importation of 
 negroes, and allowed a drawback noon anv negro, thus 
 imported and for whom the duty had been paid, if export¬ 
 ed within the space of twelve months and bona fide, sold 
 in any other plantation. 
 
 How. or by what act particularly, slavery was abolish¬ 
 ed in Massachusetts, whether bv the adoption of the opin- 
 lon in Sommersett’s case, as a declaration and modification 
 of the common law, or bv the Dpolaration of Independ¬ 
 ence. or bv the Constitution of 1780. it is not now very 
 easv 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 bv the declaration of rights. 
 In the ease of Winrhendon vs. Hatfield. 4 Mass. R. 123. 
 "hich was a case between two towns respecting the sup¬ 
 port of a pauper. Chief Justice Parsons, in giving ihe 
 opinion of tho court, states, that at the first action which 
 came before the court after the establishment of the con 
 stitution, the judges declared, that bv virtue of the de¬ 
 claration of rights, slavery in this state was no more. 
 And he mentions another case, Littleton vs. Tuttle. 4 
 Mags. R. 1 S 8 , note, in which was stated as the unanim¬ 
 
 ous opinion of the courl, that a negro born within the 
 Slate, 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 ibis opinion. 
 
 It has recently been stated as a fact, that there were 
 judicial decisions in this slate, prior to die adoption of die 
 present constitution, holding that negroes born here of 
 slave parents were free. A fact is slated in the above 
 opinion of Chief Justice Parsons, which may account for 
 this suggestion. He slates that several negroes, born in 
 this country, of imported slaves, had demanded their 
 freedom of their masters by suits of law, and obtained it 
 by a judgment of court. The defence o( the master, he 
 says, was faintly made, for such was the temper of the 
 limes, that a restless, discontented slave was worth little, 
 and when bis freedom was obtained in a course of legal 
 proceedings, bis masier was not liolden for his support, 
 if lie became poor. It is very probable, therefore, that 
 ibis surmise is correct, and that records of judgments to 
 this effect may be found ; but they would throw very lit¬ 
 tle light on the subject. 
 
 Without pursuing this inquiry farther, it is sufficient for 
 the purposes of the case before us, that by Ihe constitu¬ 
 tion adopted in 1780, slavery was abolished in Massachu¬ 
 setts, upon the ground that it is contrary to natural right 
 and ihe plain principles of juslice. The terms of the first 
 eitide of the declaration of rights are plain and explicit. 
 ‘ All men are born free and equal, and have certain nat¬ 
 ural, essential and unalienahle rights, among which are, 
 the right of enjoying and defending their lives and liber¬ 
 ties, that of acquiring, possessing and protecting proper¬ 
 ty.’ It would he 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 up¬ 
 held, 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 de¬ 
 scription was broad enough in its terms to emhrace ne¬ 
 groes, and that it was intended by the framers of the con- 
 slitution to embrace them, is proved by the earliest con¬ 
 temporaneous construction, by an unbroken series of ju¬ 
 dicial decisions, and by a uniform practice from the adop¬ 
 tion of the constitution to the present time. The whole 
 tenor of 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 neees- 
 sary 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 romity of nations to have a limited operation with¬ 
 in 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 Ihe law of England, in this re¬ 
 spect; that while slavery is considered as unlawful and 
 inadmissible in both, and this because contrary to natur¬ 
 al right and to laws designed for the security of personal 
 liberty, yet in both, the existence of slavery in other 
 countries is recognised, and the claims of foreigners, 
 growing out of that condition, are to a certain extent, re¬ 
 spected. Almost the only r- ason assigned by Lord Mans¬ 
 field in Sommersett’s ca«e was. that slavery is of such a 
 nature that it is incapable of being introduced on anv 
 reasons moral or political but only by positive law ; and, 
 it is so odious, that nothing can be suffered to support it 
 but positive law. 
 
 The same doctrine is clearly staled in Ihe full and able 
 opinion of Marshall C. J.. in Ihe case of Ihe Antelope, 10 
 Wheat. 120. fie is speaking of the slave trade, but the 
 remark itself shows that it applies to the stale of slavery. 
 
 ‘ That it is contrary to the law of nature will scarcely be 
 denied. That every man lias 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 ap- 
 
Opinion of the Court . 
 
 37 
 
 propriate 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 au¬ 
 thority directly in point. The consequence is, that eaclt 
 independent community, in its intercourse with every oth¬ 
 er, is bound to act on the principle, that such other coun¬ 
 try has a full and perfect authority to make such laws for 
 the government of its own subjects, as its own judgment 
 shall dictate and its own conscience approve, piovided 
 the same are consistent with the law ol nations; and no 
 independent community has any right to intefere with the 
 acts or conduct of another slate, within the territories of 
 such stale, or on the high seas, which each lias an equal 
 right to use and occupy; and that each sovereign slate, 
 governed by its own laws, although competent and well 
 authorized to make such laws as it may think most expe¬ 
 dient to the extent of its own territorial limits, and lor the 
 government of its own subjects, yet beyond those limits, 
 and over those who are.not her own subjects, has no au¬ 
 thority' to enforce her own laws, or to treat the laws ol 
 other slates as void, although contrary to its own views of 
 morality. 
 
 This view seems consistent with most of the leading 
 cases on the subject. 
 
 Sommcrselt’s case, 20 Howell’s State Trials 1, as al¬ 
 ready cited, decides that slavery, being odious and 
 against natural right, cannot exist, except by lorce of pos¬ 
 itive 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 under¬ 
 stood customary law as the enactment of a statute ; 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 acquies¬ 
 cence or enactment, and not because they are the dictates 
 of natural justice, and as such of universal obligation. 
 
 1'ke Louis, 2 Dodson’s R. 238. 'This was an elaborate 
 opinion of Sir Win. Scott. It was the case of a French 
 vessel seized by an English vessel in time ol peace, whilst 
 engaged in the slave trade. It proceeded upon the ground 
 that a right of visitation by the vessels of one nation, ol 
 the vessels of another, could only be exercised in lime 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’s R. 240. The judgment of Sir 
 Win. Grant in this case, upon the point on which the case 
 was decided, that of the burden of proof, has been doubt¬ 
 ed. But upon the point now under discussion, he says, 
 but we do not lay down as a general principle, that this is 
 a trade which cannot, abstractedly spending, be said to 
 have a legitimate 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 held, in consequence of lire principles declar¬ 
 ed by the British government, that he was bound to hold 
 primaJacie, that the traffic was unlawful, and threw on 
 the claimant the burden of proof, that the traffic was per¬ 
 mitted by the law of his own country. 
 
 The Diana, 1, Dodson, 95. This case strongly corrob¬ 
 orates the general principle, that though the slave trade is 
 contrary to the principles of justice and humanity, it can¬ 
 not with truth be said, that it is contrary to the laws of 
 all civilized nations; and that courts will respect the prop¬ 
 erty 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, w'hicli throw much light upon the subject. 
 
 JMaeTrazo vs. Willis , 3 B. and Aid. 353. It was an ac¬ 
 tion brought by a Spaniard against a British subject, who 
 had unlawfully and without justifiable cause, captured a 
 
 ship with three hundred slaves on board. The only ques« 
 tion 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, lor the 
 value of the slaves as property, and directed the ship and 
 the slaves to be separately valued. On further consider¬ 
 ation 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 Span¬ 
 iard between Spain and the coast of Africa, and if per¬ 
 mitted 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 slating 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 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 Brit¬ 
 ish nation. If a ship be acting contrary to the general 
 law of nations, she is thereby subject to confiscation ; but 
 it is impossible to say that the slave trade is contrary to 
 what may be called the common law of nations. 
 
 Forbes vs. Cochrane, 2 Barn. &, Cressw.448. 3Dowl.&. 
 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 Brit¬ 
 ish 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 w as held that he 
 could not maintain an action against the master of the ship 
 for harboring the slaves after notice and demand of them. 
 Borne of the opinions given in this case are extremely in¬ 
 structive 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 wai- 
 ranted 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 countiy where he was 
 domiciled, that when such rights arc 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, with¬ 
 in such territory, the party grieved would be entitled to 
 a remedy, but that the law of slavery is a law in invilum, 
 and when a parly gets out of the territory, where it pre¬ 
 vails, and under the protection of another power, without 
 any wrongful act done by the parly giving that protec¬ 
 tion, the right of the master, which is founded on the muni¬ 
 cipal law of the place only, does not continue. So in 
 speaking of the effect of bringing 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, therefore if a man wishes to preserve his 
 slaves, let them 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 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 intimat¬ 
 ed by the definition of slavery in the civil law ; ‘ hervi - 
 
38 
 
 Opinion of the Court. 
 
 tus est constilutio juris gentium, qua qiiis dominio alieno 
 contra naluram subjicilur.’ 
 
 Upon a general review of llie aulhnriiies, and upon an 
 application of the well established principles upon tins 
 subject, we think they fully maintain the point staled, that 
 though slavery is contrary to natural right, to the princi¬ 
 ples of justice, humanity and sound policy, as we adopt 
 them and found our own law’s upon them, yet not being 
 contrary to the laws of nations, il any other stale or com¬ 
 munity 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 ol 
 morality and policy, which the sovereign and legislative 
 power of the place, has pronounced to be lawful. II 
 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 w ithin the 
 local limits of the power by whom they are thus estab¬ 
 lished, or on the high seas, which each and every nation 
 has a right in common w ith all others to occupy, our law s 
 would no doubt afford a remedy against the wrong done. 
 So in pursuance of a well known maxim, that in the con¬ 
 struction 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 oth¬ 
 er respects to be sued in our courts, upon a contract made 
 upon the subject of slavery in a stale where slavery is 
 allowed by law, the law here would give tt 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 consider¬ 
 ation, or, without consideration, because given for the 
 price of a slave sold, it may well be admitted that such a 
 defence could not prevail, because the contract was a le¬ 
 gal one by the law of the place where il was made. 
 
 This view of the law applicable to slavery, marks 
 strongly the distinction betw een the relation of master and 
 slave as established by the local law of particular Slates, 
 and in virtue of that sovereign power and independent 
 authority, which each independent State concedes to ev¬ 
 ery other, and those natural and social relations, w hich 
 are every where and by all people recognized, and w hich, 
 though they may be modified and regulated by municipal 
 law, are not founded upon it, such as the relation of pa¬ 
 rent 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 the 
 maxim, that the right of personal properly 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 doemed his property 
 every where. It is obvious, that if this were true, in the 
 extent in which the argument employs it, if slavery exists 
 any where, 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 every where and by all na¬ 
 tions, treated and deemed subjects of property, llut it is 
 not speaking with strict accuracy to say, that a properly 
 can he acquired in human beings, by local laws. Each 
 Stale may, for its own convenience, declare that slaves 
 shall be deemed properly, 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 them personal properly generally: they can 
 only determine, that (he same rules o'f law shall apply to 
 them as are applicable to properly, and this effect will 
 follow only so far as such laws propiio vigore can op¬ 
 erate. ° 1 
 
 The same doctrine is recognized in Louisiana. In the 
 case of Lunsford vs Coquiilon, 14 Martin's Rep. 401, it 
 
 is thus stated ;—The relation of owner and slave in the 
 States of this Union, in which it has a legal existence, is 
 a creature of the municipal law. See Story’s Conflict of 
 Laws, 92,97. 
 
 The same principle is declared by the Court in Ken¬ 
 tucky, in the case ol Rankin vs. 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 and entitled to the protection of the laws. 
 
 That though by the laws of a foreign Stale, meaning by 
 “ foreign ” in this connection, a Stale governed by its 
 own laws, and between which and our own, there is no de¬ 
 pendence one upon the other, but which in this respect are 
 as independent as foreign Stales, a person may acquire a 
 property in a slave, that 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 be¬ 
 ing contrary to the fundamental laws of the Slate, such 
 general right of property cannot be exercised or recogniz¬ 
 ed here. 
 
 That as a general rule, all persons coming within the 
 limits of a Stale, 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 the case of fugitives, to be afterwards 
 considered; that if such persons have been slaves, they be¬ 
 come free, not so much because any- alteration is made in 
 their status, or condition, as because there is no law, 
 which w ill warrant, but there arc laws, if they choose to 
 avail themselves of them, which prohibit (heir forcible de¬ 
 tention or forcible removal. 
 
 That the law arising from the comity of nations cannot 
 apply ; because if il 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 pcrmil- 
 ed, have acquired slaves as property, might bring their 
 slaves here, and exercise over them the rights and power, 
 which an owner of properly might exercise, and lor any 
 length of time, shfirBof acquiring a domicile; that such ait 
 application of the law would be wholly repugnant to our 
 laws, entirely inconsistent with our policy, and our funda¬ 
 mental principles, and is therefore inadmissible. 
 
 Whether if a slave volunlaiily brought here and w ith 
 his own consent returning with his master, would resume 
 his condition as a slave, is a question which was incident¬ 
 ally raised in the argumenl,but is one on w hich 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 w it, that he becomes entitled to the 
 protection of our laws, and there is no law to w arrant his 
 forcible arrest and removal, it would seem to follow as a 
 necessary conclusion, that if the slave waives the protec¬ 
 tion of those laws, and returns to the state w here he is 
 held as a slave, his condition is not changed. 
 
 In the ease Exparte Grad, 2, Haggard's Ad. R. 94, 
 this question was fully considered by Sir Wnt. Scott, in 
 the ease of a slave brought from the West Indies to Eng¬ 
 land, and afterwards voluntarily returning to the W. In¬ 
 dies; and he held that she was rc-inslated in her condi¬ 
 tion of slavery. 
 
 A different decision, I believe, has been made of the 
 question in some of the L’nitcd States ; but for the reasons 
 already given, il is not necessary to consider it further 
 here. 
 
 The question has thus far been considered ns numeral 
 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 citizeu of another state of this 
 
Opinion of the Court. 
 
 39 
 
 Uni™., that is, liovv the question as between citizens of 
 <lifiWeKt states, is affected by the provision of the Consti¬ 
 tution and laws of the United States. 
 
 In Article 4, Sec. 2, tlie Constitution declares that no 
 jHirsou held to service or labor in one stale, under the laws 
 thereof, escaping into another, shall in consequence of any 
 law or regulation therein, be discharged from such ser¬ 
 vice 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 Slates, &,e. shall escape into any oilier of the said 
 slates 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 stale, from which he or she 
 fled, owes service, dec. Act of Feb 12,1793. 
 
 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, 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 im¬ 
 port of the language used, and no further. The constitu¬ 
 tion and law manifestly refer to the case of a slave escap¬ 
 ing from a slate 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 lie owed service or 
 labor, under the laws of the state or territory from which 
 hejledj and the authority given is to remove sucli fugitive 
 to the state from which he fled. This language can, bv no 
 reasonable construction, be applied to the case of a slave 
 who has not fled from the stale, but who has been brought 
 into this state by his master. 
 
 'The same coudu ion will result from a consideration of 
 the well known circumstances under which this constitu¬ 
 tion was formed, lie fore the adoption of the constitution, 
 the slates were to a certain extent, sovereign and inde¬ 
 pendent, and were in a condition to settle the terms upon 
 which they would form a more perfect union. It has been 
 contended by some over-zealous philanthropists, that such 
 an article in the constitution could be of no binding force 
 or validity, because it was a stipulation contrary to natural 
 right. Hut it is difficult to perceive the force of this ob¬ 
 jection. It lias already been shown, that slavery is not 
 contrary to the Jaws of nations. It would then be the pro¬ 
 per subject of treaties among sovereign and independent 
 powers. Sapptse instead of forming the present constitu¬ 
 tion, or any other confederation, the several states had be¬ 
 come in all respects sovereign and independent, would it 
 not have been competent for them to stipulate, that fugitive 
 slaves should bo mutually restored, and to frame suitable 
 regulations, under which such a stipulation should be car¬ 
 ried into effect ? Such a stipulation would be highly im¬ 
 portant and necessary to secure peace and harmony be¬ 
 tween adjoining nations, and to prevent perpetual collis¬ 
 ions 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 stale against its will, espe¬ 
 cially tvlier* a claim to such protection would be likely to 
 ‘nvolve the stale in war; and each independent state has a 
 
 ght to delermiie by its own laws and treaties, who may 
 
 une to reside or seek shelter within its limits. Now the 
 constitution of the United Slates partakes both of the na¬ 
 ture of a treaty and of a form of government. It regards 
 the states, to a certain extent, as sovereign and independ¬ 
 ent communities, with full power to make their own laws 
 and regulate their domestic policy, and fixes the terms up¬ 
 on which their intercourse with each other shall be con¬ 
 ducted. In respect to foreign relations, it regards the peo¬ 
 ple of the states as one community, and constitutes a form 
 #f government for them. It is well known that when this 
 constitution was formed, some of the states permitted sla¬ 
 very and the slave trade, and considered them highly es¬ 
 sential to their interests, and that some other states had 
 abolished slavery within their own limits, and from the 
 principles deduced and policy avowed by them, might 
 
 5 
 
 be presumed to desire to extend sucli abolition further. Il 
 was therefore manifestly the intent and the object of one 
 party to this compact to enlarge, extend and secure as far 
 ns possible, the rights and powers of the owners of slaves,, 
 within their own limits, as well as in other slates, and of 
 the other parly to limit and restrain them. Under these 
 circumstances the clause in question was agreed on and in¬ 
 troduced into the constitution ; and as it was well consid¬ 
 ered. as it was intended to secure future peace and harmo¬ 
 ny, 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 slave owners, whilst the slaves remain with¬ 
 in 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 un¬ 
 exceptionable authorities. 
 
 In the case of Butler vs. Hopper. 1 Wash. C. C. Bop, 
 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 volun¬ 
 tarily carried l;v liis master into another state, and there 
 leaving him under the protection of some lafv declnritit? 
 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, be¬ 
 cause he had, for two years of the period, ceased to be a 
 Member of Congress, and so lost the privilege; and by 
 having become n 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 con¬ 
 stitution and laws of the United States, must bring him¬ 
 self within their plain and obvious meaning, and they will 
 not he extended by construction ; and that the clause in 
 the constitution is confined to the case of a slave escap¬ 
 ing from one state and fleeing to another. 
 
 But in a more recent case, the point was decided by the. 
 same eminent judge. Ex parte Simmons, 4 Wash. C. C. 
 P>. 3%. It was an application for a certificate under § 3 
 of the act of Feb. 12.1793. He held that both the con¬ 
 stitution and laws of the United States apply only to fu¬ 
 gitives. 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 bv the laws of Pennsylvania, which, like 
 our own in effect, liberate slaves voluntarily brought with¬ 
 in the state, but there is an exception in favor of Members 
 of Congress. Foreign Ministers and Consuls, and sojourn¬ 
 ers : but this provision is qualified as to sojourners and 
 persons passing through the state in such manner as to ex¬ 
 clude 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 ease 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, the per¬ 
 son 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 stale in the case of Ccmmomeeolth 
 v. Holloway, 2 Serg. & Rawle, 305. Il was the case of 
 
40 
 
 Opinion of the Court. 
 
 a child-of a fugitive slave, born in Pennsylvania. It was 
 held that the constitution of the U. S. was not inconsis¬ 
 tent with the law of Pennsylvania; that as the law and 
 constitution of the U. S. did not include the issue of fu¬ 
 gitive slaves in terms, it did not embrace them by con¬ 
 struction or implication. The court considers the law as 
 applying only to those who escape. Yet by the operation of 
 the ruaxiin which obtains in all the states wherein slavery 
 is permitted by law, partus sequitur ventrem, the offspring 
 would follow the condition of the mother, it 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 Ameri¬ 
 can Jurist, 404. 
 
 In Louisiana, it has been held, that if a person with a 
 slave, goes into a state to reside 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 con¬ 
 sidered afterwards in all other states ; and a person mov¬ 
 ing from Kentucky to Ohio, to reside, his slaves thereby 
 became free, and were so held in Louisiana. This case 
 also fully recognises the authority of states to make laws 
 dissolving the relation of master and slave ; and consid¬ 
 ers the special limitation of the general power, bv the 
 federal constitution, as a forcible implication in proof of 
 the existence of such general power. Lunsford v. Co- 
 quUlon, 14 Martin’s Rep. 465. 
 
 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 
 construod strictlv. 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 ‘ Lc Code JNoir,’ 
 respecting slavery in the colonies. In 1716, an edict was 
 published hy Louis XV, concerning slavery in the colo¬ 
 nies, 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 re¬ 
 ligion, and to be instructed in various arts and handicrafts, 
 from 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 com¬ 
 plied 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 lim¬ 
 its of this state against the will of the master, but by his 
 own act and permission. This provision is to be constru¬ 
 ed 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 up¬ 
 on these grounds, we are of opinion, that an owner of a 
 slave in another state w here slavery is warranted by law, 
 voluntarily bringing such slave into this state, has no au¬ 
 thority 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 con¬ 
 fers a right-or favor, by necessary implication it gives the 
 means of executing it. Nor do we give any opinion upon 
 the case, where an owner of a slave i« one state, is bt na 
 fide removing to another state where slavery is allowed, 
 and in so doing necessarily passes through a free state, or 
 arrives by accident or necessity he Is compellea to touch 
 or land therein, remaining no longer than necessary. Our 
 geographical position exempts us from the probable neces¬ 
 sity of considering such a case, and we give no opinion 
 respecting it. 
 
 The child who is the subject of this habeas corpus, be¬ 
 ing of too tender years to have any will or give nnv con¬ 
 sent to be removed, and her mother, being a slave and 
 having no will of her own and no power to art for her 
 child, she is necessarily left in tl e enstodv of the law. 
 The respondent having claimed the enstodv of the rhild, 
 in behalf of Mr. and Mrs. Slater, who claim the right to 
 carry her back to Louisiana, to he held in a state of slave¬ 
 ry, we are of opinion that his custody is not to be 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 cus¬ 
 tody, to give time for an application to be made to the 
 Judge of Probate. 
 
 [The Court were unanimous in the above opinion.] 
 
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