No person can be restrained of his liberty within this State, unless legal cause be shown for such restraint. The habeascorpus act operates to remove the subject from private force into the public forum: and enlargement of liberty, unless some cause in law be shown to the contrary, flows from the writ by a legal necessity. (Const., art. 1, § 4; 2 R.S., 563, § 21;id., 565, § 39.) The restraint cannot be continued for any moment of time, unless the authority to maintain it have the force of law within the State.
In November, 1852, a writ of habeas corpus on behalf of eight colored persons, was issued by a Justice of the Superior Court in the city of New York, to inquire into the cause of their detention. The appellant showed for cause that they *Page 616 were slaves of his wife in Virginia, of which State before that time he and his wife had been citizens and there domiciled, and that she held them as such in New York, in transit from Virginia through New York to Texas, where they intended to establish a new domicil. The return to the writ stated substantially that the route and mode of travel was by steamer from Norfolk, in Virginia, to the port of New York, and thence by a new voyage to Texas. In execution of this plan of travel, they and their slaves had reached the city of New York, and were awaiting the opportunity of a voyage to Texas, with no intention on their part that they or the eight colored persons should remain in New York for any other time, or for any other purpose, than until opportunity should present to take passage for all to Texas. The whole question, therefore, on these facts is, whether the cause shown was a legal one. If the relation of slave owner and slave which subsisted in Virginia between Mrs. Lemmon and these colored persons while there, by force of law attend upon them while commorant within this State in the course of travel from Virginia to Texas, and New York, though a sovereign State, be compelled to sanction and maintain the condition of slavery for any purpose, and cannot effect a universal proscription and prohibition of it within her territorial limits, then is legal cause of restraint shown: otherwise not.
The question is one affecting the State in her sovereignty. As a sovereign State she may determine and regulate the status or social and civil condition of her citizens, and every description of persons within her territory. This power she possesses exclusively; and when she has declared or expressed her will in this respect, no authority or power from without can rightly interfere, except in the single instance of a slave escaping from a State of the Union into her territory; and in this, only because she has, by compact, yielded her right of sovereignty. (U.S. Const., art. 4, § 2.) She has the undoubted right to forbid the status of slavery to exist in any form, or for any time, or for any purpose, within her borders, and declare that a slave brought into her territory from a foreign *Page 617 State, under any pretence whatever, shall be free. If she has done this, then neither an African negro nor any other person, white or black, can be held within her limits, for any moment of time, in a condition of bondage. It cannot affect the question, that at some time in her history as a colony or State she has tolerated slavery on her soil, or that the status has ever had a legal cognition: for without regard to time or circumstances, the State may, at her will, change the civil condition of her inhabitants and her domestic policy, and proscribe and prohibit that which before had existed. I do not say that she may convert any description of her free inhabitants or citizens into slaves; for slavery is repugnant to natural justice and right, has no support in any principle of international law, and is antagonistic to the genius and spirit of republican government. Besides, liberty is the natural condition of men, and is world-wide: whilst slavery is local, and beginning in physical force, can only be supported and sustained by positive law. "Slavery," says Montesquieu, "not only violates the laws of nature and of civil society; it also wounds the best forms of government; in a democracy where all men are equal slavery is contrary to the spirit of the Constitution."
It is not denied that New York has effectually exerted her sovereignty to the extent that the relation of slave owner and slave cannot be maintained by her citizens, or persons or citizens of any other State or nation domiciled within her territory, or who make any stay beyond the reasonable halt of wayfarers, and that this she might rightfully do. I will not stop here to inquire whether this is not virtually conceding the whole question in the case. It is urged that this is as far as the State had gone when the present case arose; and if I comprehend the argument rightly, as far as she can ever go without transcending restraints imposed upon her sovereignty by the Constitution of the United States, or violating the principles of the law of nations as governing the intercourse of friendly States. I shall show that neither of these propositions are maintainable, and that in the legislation of the State on the subject of slavery, the case of the status during transit has not *Page 618 escaped its intent and effect; but that if it were otherwise, when the domestic laws reject and suppress the status as a civil condition or social relation, as matter of reason and authority it is never upheld in the case of strangers resident or in transit.
1st. How far has the State gone in the expression of her sovereign will, that slavery, by whatsoever casual access, or for whatsoever transient stay, shall not be tolerated upon her soil? When negro slavery was first introduced and established as an institution in the Colony of New York, is not easily traceable. It never had any foundation in the law of nature, and was not recognized by the common law. (Somerset's case, Lofft's R., 1;S.C., 20; Howell's State Trials, 2.) Yet it existed in the Colony by force of local law, and was continued by the same sanction in a mild form in the eastern part of the State, after New York became an independent sovereignty. The public sentiment, reason and conscience, however, continued to frown on it until, in 1817, steps were taken by the legislative department of the government to effect its total abolition before 1830. As indicative of the public sentiment, in 1820 the Legislature, with unanimity, adopted a resolution requesting our Representatives in Congress to oppose the admission of any State into the Union, without making the prohibition of slavery therein an indispensable condition of admission; and in the preamble to the resolution, recited that they considered slavery to be an evil much to be deplored. The statute of 1817, provided against importing, introducing, or bringing into the State, on any presence whatever, except in certain cases therein specified, persons held as slaves under the laws of other States. Amongst these cases, was that of a person, not being an inhabitant of our State, who should be traveling to or from, or passing through the State. He might bring with him any person held by him in slavery under the laws of the State from which he came, and might take such person with him from the State of New York; but the person held in slavery should not reside or continue in our State more than nine months, and if such residence were continued beyond that time, such person should be free. These provisions *Page 619 against introducing or bringing foreign slaves into the State, except in the case of an inhabitant of another State, temporarily sojourning in or passing through this State, were re-enacted in the revision of the Statutes in 1830, with this additional section: "Every person born within this State, whether white or colored, is free; every person who shall hereafter be born within this State shall be free, and every person brought into this State as a slave, except as authorized by this title, shall be free." (1 R.S., 656, 657, § 6; id., 659, § 16.) Here was an authoritative and emphatic declaration of the sovereign will, that freedom should be the only condition of all descriptions of persons, resident or domiciled within the State, and that no slave should be brought therein, under any pretence whatever, except by his master, an inhabitant of another State, who was traveling to or from, or passing through this State. Thus slavery was left without the support of even the municipal law, except in the instance of sojourners, and then only for a period of nine months, and slave owners of other States passing with their slaves through our own. But in 1841, the sanction of the municipal law even in these cases was taken away. The Legislature, in 1841, repealed all the sections of the Revised Statutes allowing slaves to be brought voluntarily into the State, under any circumstances, leaving the provisions still in operation, that no person held as a slave should be imported, introduced or brought into the State on any pretence whatever; and if brought in, should be free. (Laws of 1841, ch. 247.) That this legislation was intended to reach the case of thetransitus of a slave in custody of an inhabitant of a slaveholding State claiming to be his owner, and to leave no legal basis for the status of slavery in any form or for any purpose to rest upon, within the limits of the State, is evident. By the law of 1830, the privilege was secured to the foreign slaveholder of temporarily sojourning in or passing through the State with his slaves. In 1841 this privilege is taken away by the affirmative action of the law-making power. So, also, by the law of 1830, any person who, or whose family, resided part of the year in this State, and part *Page 620 of the year in any other State, might remove or bring with him or them, from time to time, any person lawfully held by him in slavery, into this State, and might carry such person with him or them out of it. This was denied by the Legislature in 1841. The obvious intent and effect of the repealing act of 1841 was to declare every person upon the soil of this State, even though he may have been held as a slave by the laws of another State, to be free, except in the single instance of a person held in slavery in any State of the United States under the laws thereof, who should escape into this State. With the courtesy of this legislation, so far as it might operate to affect friendly intercourse with citizens of slaveholding States, as a judicial tribunal, we have nothing to do. We are only to determine the intent and effect of the legislation. It is but just, however, to the political power of the State, to remark, that it was not conceived in any spirit of irrational propagandism or partizanship, but to effectuate a policy based upon principle, and in accordance with public sentiment. The fact that it has been the law of the State for nearly twenty years, and through successive changes of the political power, is cogent proof that it rests upon the foundation of a public sentiment not limited in extent to any party or faction. The effect of the legislation was to render the civil condition of slavery impossible in our own society. Liberty and slavery, as civil conditions, mean no more than the establishment of law, and the means to enforce or protect the one or the other. As the status of slavery is sustained and supported exclusively by positive law (and this has been so held as to the status in Virginia by her courts), if we have no law to uphold it, but on the contrary, proscribe and prohibit it, it cannot exist for an instant of time within our jurisdiction. (4 Munford's R., 209; 2 Hen. Munford, 149.) Of course I mean with this qualification, that there is no duty or obligation in respect thereto, imposed on the sovereignty of the State by the Federal Constitution, or the rules of international law.
2d. Is there anything in the Federal Constitution to hinder the State from pursuing her own policy in regulating the social *Page 621 and civil condition of every description of persons that are or may come within her jurisdictional limits, or that enjoins on her the duty of maintaining the status of slavery in the case of slaves from another State of the Union voluntarily brought into her territory? It ought not to be necessary at this day to affirm the doctrine, that the Federal Constitution has no concern, nor was it designed to have, with the social basis and relations and civil conditions which obtain within the several States. The Federal Constitution is but the compact of the people of separate and independent sovereignties, yielding none of the rights pertaining to those sovereignties within their respective territorial limits, except in a few special cases. This was the nature of the compact as explained by its framers and contemporaneous expounders, and since by the Federal Courts, although it has become common of late to strive to find something in this bond of Federal Union to sustain and uphold a particular social relation and condition outside of the range of the laws which give it vitality. (Ex parte Simmons, 4 Wash. C.C.R., 396; Groves v. Slaughter, 15 Pet., 508; Prigg v.Commonwealth of Penn., 16 Pet., 611, 625; Strader v.Graham 10 How. R., 82, 93.) Although the status of African slavery had at some time been recognized in all of the original States, at the period of the formation of the Federal Constitution some of them had abolished the institution, and others were on the eve of abolishing it; whilst others were maintaining it with increasing vigor. There are but three sections in the whole instrument that allude to the existence of slavery under the laws of any of the States, and then not in terms but as explained by the light of contemporaneous history, and in such a way as to stamp the institution as local. These are the provisions apportioning federal representation and direct taxation (U.S. Const., art. 1, § 2, subd. 3) in relation to "persons held to labor in one State, under the laws thereof, escaping into another" (Const., art. 4, § 2) and restraining Congress, prior to 1808, from prohibiting "the migration or importation of such persons as any of the States now existing shall think proper to admit." (Const., art. 1, § 9.) The latter provision, *Page 622 it is known, was urged with much earnestness by the delegates from two or three of the Southern States, with the view to restrain Congress from prohibiting the foreign slave trade before 1808. In Groves v. Slaughter (15 Pet., 506), Judge McLEAN thought the provision recognized the power to be in the States to admit or prohibit, at the discretion of each State, the introduction of slaves into her territory. He says: "The importation of certain persons, meaning slaves, which was not to be prohibited before 1808, was limited to such States then existing as shall think proper to admit them. Some of the States at that time prohibited the admission of slaves, and their right to do so was as strongly implied by this provision as the right of other States that admitted them." But the provision has long ceased to have any practical operation. Congress has prohibited the importation of slaves into any of the States of the Union, and the slave trade is declared to be piracy. The provision has no importance now, except it be to show, that in the view of the framers of the Constitution, slavery was local in its character; that the power over it belonged to the States respectively, and that it was not to be recognized or receive any aid from the federal authority; but on the contrary, by all the means it possessed, federal power, after 1808, was to be exerted to suppress it. The provision in respect to apportioning representation in Congress, alludes remotely and only impliedly to the fact that slavery existed in any of the States. The representative population was to be "determined by adding to the whole number of free persons including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." No duty or obligation was imposed on the States; nor is there the remotest sanction or recognition of slaves as property outside of the range of the territorial laws which treat them as such. The third provision is simply a consent of the State as parties to the federal compact to the reclamation of fugitives from service. In speaking of this clause, Judge STORY said, in delivering the opinion of the Supreme Court of the United States in Prigg v. Commonwealth of Pennsylvania: "By the general laws of nations, no nation *Page 623 is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity and not as a matter of international right. The state of slavery is deemed to be a municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's case, which was decided before the American Revolution. It is manifest, from this consideration, that if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters; a course which would have created the most bitter animosities, and engendered perpetual strife between the different States. * * The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it; a proof at once of its intrinsic and practical necessity." The learned judge was right in saying that the clause, as it stands in the instrument, was adopted with entire unanimity; but it was not adopted as originally reported. There were many eminent and patriotic men in and out of the Convention, both north and south, that did not contemplate that slavery was to be perpetual in any of the States of the Union, and amongst these was the illustrious presiding officer of the Convention, from Virginia. It was certainly inconsistent with the principle that lies at the foundation of our government. In incorporating the fugitive slave provision in the Constitution, the Convention was careful not to do anything which should imply its sanction of slavery as legal. The provision, as originally reported, read, "legally held to service," and it was amended by striking out the word "legally" and made to read "held to service or labor in one State, under the laws thereof." (See Journal, 384; Madison's Works, 1558, 1589.)
So, also, the word "service" was substituted for "servitude," on motion of a delegate from Virginia; the latter being *Page 624 descriptive of slaves. (3 Madison's Works, 1569.) The term "slave" is not used in the Constitution, and if the phrase, "a person held to service or labor in one State under the laws thereof," is to be construed as meaning slaves, then the Federal Constitution treats slaves as persons and not as property, and it acts upon them as persons and not as property, though the latter character may be given to them by the laws of the States in which slavery is tolerated. It is entirely clear that the Convention was averse to giving any sanction to the law of slavery, by an express or implied acknowledgment that human beings could be made the subject of property; and it is moreover manifest from all the provisions of the Constitution, and from contemporaneous history, that the ultimate extinction of slavery in the United States, by the legislation and action of the State governments (instead of adopting or devising any means or legal machinery for perpetuating it), was contemplated by many of the eminent statesmen and patriots who framed the Federal Constitution, and their contemporaries both north and south. The provision in relation to fugitives from service, is the only one in the Constitution that, by an intendment, supports the right of a slave owner in his own State, or in any other State. This, by its terms, is limited to its special case, and necessarily excludes federal intervention in every other. This has been always so regarded by the federal courts and the cases uniformly recognize the doctrine, that both the Constitution and laws of the United States apply only to fugitives escaping from one State and fleeing to another; that beyond this the power over the subject of slavery is exclusively with the several States, and that their action cannot be controlled by the Federal Government. Indeed, the exclusive right of the State of Missouri to determine and regulate the status of persons within her territory, was the only point in judgment in the Dred Scott case, and all beyond this was obiter. (Ex parte Simmons, 4 Wash. C.C.R., 396;Groves v. Slaughter, 15 Pet., 508; Strader v. Graham, 10Howard, 92.) Any other doctrine might prove more disastrous to the status of slavery than to that of liberty in the States, for, from *Page 625 the moment that it is conceded that, by the exercise of any powers granted in the Constitution to the Federal Government, it may rightly interfere in the regulation of the social and civil condition of any description of persons within the territorial limits of the respective States of the Union, it is not difficult to foresee the ultimate result.
The provision of the Federal Constitution conferring on Congress the power to regulate commerce among the several States, is now invoked as a restraint upon State action. It is difficult to perceive how this provision can have any application to the case under consideration. It is not pretended that the persons claimed to be held as slaves were in transit to Texas as articles of commerce; nor that, being with their alleged owner, on board a coasting vessel, enrolled and licensed under the laws of Congress, such vessel was driven, by stress of weather or otherwise, into the navigable waters of this State. Indeed, the case showed that their owner had voluntarily brought them into the State; that taking passage from Norfolk to New York, his and their voyage in the coasting steamer had terminated, and he was sojourning in the city with them, awaiting the opportunity to start on a new voyage to Texas. It is certainly not the case of the owner of slaves, passing from one slave State to another, being compelled, by accident or distress, to touch or land in this State. In such case, probably, our law would not act upon the status of the slave, not being within its spirit and intention; but as Congress has not yet undertaken to regulate the internal slave trade, even if it has authority to do so, in no just sense could even such a case be said to raise the question of the right of federal intervention. But in no view can the provision empowering Congress to regulate commerce among the States affect the power of the respective States over the subject of slavery. Even those who have contended for the right in Congress, under the commercial power, as it is called, to regulate the traffic in slaves, among the several States, admit that it is competent for a State, with the view of effectuating its system of policy in the abolition of slavery, to entirely prohibit the *Page 626 importation of slaves, for any purpose, into her territory. But apart from effectuating any object of police or promoting any rule of policy, the power over the whole subject is with the States respectively; and this was so declared by the Supreme Federal Court, in Groves v. Slaughter (15 Pet., 508), a case in which it was attempted to be urged that a provision in the Constitution of Mississippi, prohibiting the importation of slaves into that State for sale, was in conflict with the commercial power of the Federal Government. As was said by Chief Justice TANEY, in that case, "each of the States has a right to determine for itself whether it will or will not allow persons of this description (slaves) to be brought within its limits from another State, either for sale or for any other purpose, and also to prescribe the manner and mode in which they may be introduced, and to determine their condition and treatment within their respective territories; and the action of the several States upon this subject cannot be controlled by Congress, either by virtue of its power to regulate commerce, or by virtue of any other power conferred by the Constitution of the United States." The case of Groves v. Slaughter was deemed at the time to have settled the question against the right in Congress, under the commercial claim, to regulate the internal slave trade, or to interfere in any way with the power of the States to severally protect themselves, under any and all circumstances, against an external evil.
The constitutional provision that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States" (U.S. Const., art. 4, § 2,subd. 1), is also invoked as having some bearing on the question of the appellant's right. I think this is the first occasion in the juridical history of the country that an attempt has been made to torture this provision into a guaranty of the right of a slave owner to bring his slaves into, and hold them for any purpose in, a non-slaveholding State. The provision was always understood as having but one design and meaning, viz., to secure to the citizens of every State, within every other, the privileges and immunities (whatever they *Page 627 might be) accorded in each to its own citizens. It was intended to guard against a State discriminating in favor of its own citizens. A citizen of Virginia coming into New York was to be entitled to all the privileges and immunities accorded to the citizens of New York. He was not to be received or treated as an alien or enemy in the particular sovereignty.
Prior to the adoption of the Federal Constitution, and even under the Confederation, the only kind of citizenship was that which prevailed in the respective States. The Articles of Confederation provided "that the free inhabitants of each of the States (paupers, vagabonds and fugitives from justice excepted), should be entitled to all privileges and immunities of free citizens in the several States; and the people of each State should have free ingress and egress to and from any other State, and should enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof, respectively." (Art. 4.) This article limited the right to the free inhabitants of the States, implying that there were inhabitants of the States in the Confederacy that were not free, and to whom the privileges and immunities were not extended. But when the framers of the Constitution came to re-model this clause, having conferred exclusive power upon the Federal Government to regulate commercial intercourse, and imposed the obligation upon the States, respectively, to deliver up fugitives escaping from service, and being unwilling, even impliedly, to sanction, by federal authority, the legality of the state of slavery, they omitted the provisions of the article in relation to commercial intercourse, and substituted for the words, "the free inhabitants of each State," the words, "the citizens of each State," and made the provision to read as it now stands in the Constitution. If the provision can be construed to confer upon a citizen of Virginia the privilege of holding slaves in New York, when there is no law to uphold the status, and the privilege is denied to our own citizens, then Judge STORY and the Federal Court fell into a grave error in the opinion, that if it were not for the fugitive slave provision, New York would have been at liberty to have *Page 628 declared free all slaves coming within her limits, and have given them entire immunity and protection; and so, also, did Chief Justice TANEY mistake the character of the instrument, when declaring that there was nothing in the Constitution to control the action of a State in relation to slavery within her limits. But it seems a work of supererogation to pursue this inquiry. It never yet has been doubted that the sovereign powers vested in the State governments remain intact and unimpaired, except so far as they are granted to the government of the United States; and that the latter government can claim no powers which are not granted to it by the Constitution, either expressly or by necessary implication. There is no grant of power to the Federal Government, and no provision of the Constitution from which any can be implied, over the subject of slavery in the States, except in the single case of a fugitive from service. The general power is with the States, except as it has been specially limited by the Federal Constitution; and this special limitation has been rightly considered as a forcible implication in proof of the existence of the general power in the States. So it was considered in Lunsford v. Coquillon (14 Martin's R., 403), a case arising in a slave holding State, in which the authority of States was fully recognized to make laws dissolving the relation of master and slave. Such a construction of the Constitution and law of the United States, say that court, can work injury to no one, for the principle acts only on the willing, and volenti non fit injuria.
3d. Is the State, upon principles of comity, or any rule of public law, having force within the State, required to recognize and support the relation of master and slave, between strangers sojourning in or passing through her territory? The relation exists, if at all, under the laws of Virginia, and it is not claimed that there is any paramount obligation resting on this State to recognize and administer the laws of Virginia within her territory, if they be contrary or repugnant to her policy or prejudicial to her interests. She may voluntarily concede that the foreign law shall operate within her jurisdiction, and to the extent of such concession, it becomes a *Page 629 part of her municipal law. Comity, however, never can be exercised in violation of our own laws; and in deciding whether comity requires any act, we look to our own laws for authority. There can be no application of the principles of comity, when the State absolutely refuses to recognize or give effect to the foreign law, or the relation it establishes, as being inconsistent with her own laws, and contrary to her policy. The policy and will of the State in respect to the toleration of slavery, in any form, or however transient the stay, within her territory, has been distinctly and unmistakably expressed. Before the repealing act of 1841, our statutes operated to absolutely dissolve the relation of master and slave, and make the latter a freeman, except in the case of a master and slave, inhabitants of another State, temporarily in or passing through the State. In the latter cases, though the master could obtain no affirmative aid from the municipal law to enforce restraint of the liberty of the slave, yet the State, exercising comity, expressly permitted the relation to exist for the space of nine months. To this extent the State consented that the foreign law of slavery should have effect within her limits, and the relation of master and slave was not to be dissolved by force of the municipal law, unless the stay was continued beyond nine months. There can be no doubt that without this express exception, the statute of 1830 would have acted directly upon the status of any slave brought voluntarily into the State, and made him a freeman. As a matter of comity, however, the will of the State then was, that in the case of an inhabitant of another State passing through our territory with his slaves, the status of the latter should not be affected by our laws. But, in 1841, the State, by actual legislation, abrogated the permission accorded to slavery during transit, and declared it to be her will, that, under all circumstances, a slave voluntarily brought into the State should be free, and that the status should not be tolerated within her borders. It is for the State to establish the rule, and exercise comity, and not the courts in her behalf, and she may or may not, as she chooses, exercise it. The courts have *Page 630 but the power of determining whether the comity inquired of be indicated by her policy and actual legislation. The State has declared, through her Legislature, that the status of African slavery shall not exist, and her laws transform the slave into a freeman the instant he is brought voluntarily upon her soil. Her will is that neither upon principles of comity to strangers passing through her territory, nor in any other way, shall the relation of slave owner and slave be upheld or supported. Instead, therefore, of recognizing or extending any law of comity towards a slaveholder passing through her territory with his slaves, she refuses to recognize or extend such comity, or allow the law of the sovereignty which sustains the relation of master and slave to be administered as a part of the law of the State. She says, in effect, to the foreign slave owner, if you bring your slaves within the State, on any pretence whatever, neither by comity nor in any other way shall the municipal law let in and give place to the foreign law; but the relation established and sustained only by the foreign municipal law shall terminate, and the persons before held as slaves shall stand upon her soil in their natural relations as men and as freemen. It is conceded that she may go to this extent if there be no restraint on her action by the Federal Constitution; and to this extent, I think, her policy and actual legislation clearly indicate that she has gone. But if there were no actual legislation reaching the case of slavery in transit, the policy of the State would forbid the sanction of law, and the aid of public force, to the proscribedstatus in the case of strangers within our territory. It is thestatus, the unjust and unnatural relation, which the policy of the State aims to suppress, and her policy fails, at least in part, if the status be upheld at all. Upon the same rule that she would permit the Virginia lady in this case to pass through her territory with slaves, she would be constrained to allow the slave trader, with his gang, to pass, even at the risk of public disorder which would inevitably attend such a transit. The State deems that the public peace, her internal safety and domestic interests, require the total suppression of a social condition that violates the law of *Page 631 nature (Virginia Bill of Rights, §§ 1, 15); a status, declared by Lord MANSFIELD, in Sommerset's case, to be "of such a nature that it is incapable of being introduced on any reasons, moral or political;" that originates in the predominance of physical force, and is continued by the mere predominance of social force, the subject knowing or obedient to no law but the will of the master, and all of whose issue is involved in the misfortune of the parent; a status which the law of nations treats as resting on force against right, and finding no support outside of the municipal law which establishes it. (Taylor'sElements of Civil Law, 429; Sommerset's case, 20 Howell'sState Trials, 2; 2 Devereaux's R., 263.) Why should not the State be able to utterly suppress it within her jurisdiction? She is not required by the rule of the law of nations, which permits the transit of strangers and their property through a friendly State, to uphold it. Men are not the subject of property by such law, nor by any law, except that of the State in which thestatus exists; not even by the Federal Constitution, which is supposed by some to have been made only to guard and protect the rights of a particular race; for in that human beings, without regard to color or country, are treated as persons and not as property. The public law exacts no obligation from this State to enforce the municipal law which makes men the subject of property; but by that law the strangers stand upon our soil in their natural condition as men. Nor can it be justly pretended that by the principle which attributes to the law of the domicil the power to fix the civil status of persons, any obligation rests on the State to recognize and uphold within her territory the relation of slave owner and slave between strangers. So far as it may be done without prejudice to her domestic interests, she may be required to recognize the consequences of the status existing abroad in reference to subjects within her own jurisdiction; and when it is brought within her limits, and is there permissible as a domestic regulation, to recognize the foreign law as an authentic origin and support of the actualstatus. (Story's Confl. of Laws, §§ 51, 89, 96, 113, 114, 104, 620, 624.) But no further than they are *Page 632 consistent with her own laws, and not repugnant or prejudicial to her domestic policy and interests, is the State required to give effect to these laws of the domicil.
My conclusions are, that legal cause was not shown for restraining the colored persons, in whose behalf the writ ofhabeas corpus was issued, of their liberty; and that they were rightly discharged. I have aimed to examine the question involved in a legal, and not in a political aspect; the only view, in my judgment, becoming a judicial tribunal to take. Our laws declare these persons to be free; and there is nothing which can claim the authority of law within this State, by which they may be held as slaves. Neither the law of nature or nations, nor the Federal Constitution, impose any duty or obligation on the State to maintain the state of slavery within her territory, in any form or under any circumstances, or to recognize and give effect to the law of Virginia, by which alone the relation exists, nor does it find any support or recognition in the common law.
The judgment of the Supreme Court should be affirmed.
DAVIES, BACON and WELLES, Js., concurred.