hensive legislation which prohibit that relation and render the civil relation of slavery impossible in our own society. The comity, it is to be observed, under inquiry, is (1) of the State and not of the Court, which latter has no authority to exercise comity in behalf of the State, but only a judicial power of determining whether the main policy and actual legislation of the State exhibit the comity inquired of; and (2) whether the comity extends to yielding the affirmative aid of the State to maintain the mastery of the slave-owner and the subjection of the slave. Story Confl. Laws, No. 38. Bk. Augusta vs. Earle, 13 Pet. 589. I. The principles, policy, sentiments, public reason and conscience, and authoritative will of the State sovereignty, as such, have been expressed in the most authentic form, and with the most distinct meaning, that slavery, whencesoever it comes, and by whatsoever casual access, or for whatsoever transient stay, SHALL NOT BE TOLERATED UPON OUR SOIL. That the particular case of slavery during transit has not escaped the intent or effect of the legislation on the subject, appears in the express permission once accorded to it, and the subsequent abrogation of such permission. 1 Rev. St., Part 1, ch. XX, Tit. 7, Nos. 6, 7. Upon such a declaration of the principles and sentiments of the State, through its Legislature, there is no opportunity or scope for judicial doubt or determination. Story Confl. Laws, Nos. 36, 37, 23, 24. Vattel, p. 1, Nos. 1, 2. II. But, were such manifest enactment of the sovereign will in the premises wanting, as matter of general reason and universal authority, the status of slavery is never upheld in the case of strangers, resident or in transit, when the domestic laws reject and suppress such status as a civil condition or social relation. (A) The same reasons of justice and policy which forbid the sanction of law and the aid of public force to the proscribed status among our own population, forbid them in the case of strangers within our territory. (B) The status of slavery is not a natural relation, but is contrary to nature, and at every moment it subsists, it is an ever new and active violation of the law of nature. Of this no more explicit or unequivocal statement can be framed than is to be found in the Constitution of the State of Virginia. Thus, the first article of the Bill of Rights of that Constitution declares: "That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." It originates in mere predominance of physical force, and is continued by mere predominance of social force or municipal law. Whenever and wherever the physical force in the one stage, or the social force or municipal law in the other stage, fails, the status falls, for it has nothing to rest upon. To continue and defend the status, then, within our territory, the stranger must appeal to some municipal law. He has brought with him no system of municipal law to be a weapon and a shield to this status; he finds no such system here. His appeal to force against nature, to law against justice, is vain, and his captive is free. (C) The Law of Nations, built upon the law of nature, has adopted this same view of the status of slavery, as resting on force against right, and finding no support outside of the jurisdiction of the municipal law which establishes it. (D) A State proscribing the status of slavery in its domestic system, has no apparatus, either of law or of force, to maintain the relation between strangers. It has no code of the slave-owner's rights or of the slave's submission, no processes for the enforcement of either, no rules of evidence or adjudication in the premises, no guard-houses, prisons, or whipping-posts to uphold the slave-owner's power and crush the slave's resistance. But a comity which should recognize a status that can subsist only by force, and yet refuse the force to sustain it, is illusory. If we recognize the fragment of slavery imported by the stranger, we must adopt the fabric of which it is a fragment and from which it derives its vitality. If the slave be eloigned by fraud or force, the owner must have replevin for him or trover for his value. If a creditor obtain a foreign attachment against the slave-owner, the sheriff must seize and sell the slaves. If the owner die, the surrogate must administer the slave as assets. If the slave give birth to offspring, we have a native-born slave. If the owner, enforcing obedience to his caprices, maim or slay his slave, we must admit the status as a plea in bar to the public justice. If the slave be tried for crime, upon his owner's complaint, the testimony of his fellow-slaves must be excluded. If the slave be imprisoned or executed for crime, the value taken by the State must be made good to the owner, as for "private property taken for public use.' Everything or nothing, is the demand from our comity; everything or nothing, must be our answer. (E) The rule of the Law of Nations which permits the transit of strangers and their property through a friendly State does not require our laws to uphold the relation of slave-owner and slave between strangers. By the Law of Nations, men are not the subject of property. By the Law of Nations, the municipal law which makes men the subject of property, is limited with the power to enforce itself, that is by its territorial jurisdiction. By the Law of Nations, then, the strangers stand upon our soil in their natural relations as men, their artificial relation being absolutely terminated. The Antelope, 10 Wheat. 120, 121, and cases ut supra. (F) The principle of the law of nations which attributes to the law of the domicil the power to fix the civil status of persons, does not require our laws to uphold, within our own territory, the relation of slave-owner and slave between strangers. The principle only requires us (1) to recognize the consequences in reference to subjects within our own jurisdiction (so far as may be done without prejudice to domestic interests), of the status existing abroad; and (2) where the status itself is brought within our limits and is here permissible as a domestic status, to recognize the foreign law as an authentic origin and support of the actual status. It is thus that marriage contracted in a foreign domicil, according to the municipal law there, will be maintained as a continuing marriage here, with such traits as belong to that relation here; yet, incestuous marriage or polygamy, lawful in the foreign domicil, cannot be held as a lawful continuing relation here. Story Confl. Laws, Nos. 51, 51, a., 89, 113, 114, 96, 104, 620, 624. (G) This free and sovereign State, in determining to which of two eternal laws it will by comity add the vigor of its adoption and administration within its territory, viz., a foreign municipal law of force against right, or the law of nations, conformed to its own domestic policy, under the same impulse which has purged its own system of the odious and violent injustice of slavery, will prefer the Law of Nations to the law of Virginia, and set the slave free. Impius et crudelis judicandus est, qui libertati non favet. Nostra jura IN OMNI CASU libertati dant favorem. Co. Litt. ut supra. ARGUMENT If the Court please: The question brought originally under judicial examination and for practical determination was an interesting and important one, as it respected the liberty of the persons whose fate was to be determined, under our law, by our jurisprudence, and by the judgment of our Courts. Their number was considerable; and ever in enlightened communities, there is no question so important as that which touches the liberty of man-in a free country, important that the full measure of that liberty shall not be unjustly and unlawfully circumscribed, and in a despotic country, or in a country where slavery exists, important that the poor remnant of that liberty may not be still more abridged. Therefore, that imprisonment should continue an hour longer than it ought by law, or that there should be constraint of limb or voice that the law does not allow, is ever a consideration that should call off courts of justice from the ordinary deliberations on matters of property, however great, until this question be determined, and this great wrong, if it be one, be redressed. But when the question of liberty is presented in the persons not only of so many, and not only for their lives, but for the whole stream of their posterity forever, I apprehend that no court of justice (though limiting the gravity of this question to that of the fate of these eight persons and their posterity), ever had occasion to consider a graver question of human liberty, or ever to be more careful that they should not, by an erring judgment, determine the doom of these people forever. |