This case does not come before us in any of the ordinary methods of application to an appellate Court, so that it is, perhaps, not strictly regular for us to entertain jurisdiction of it at all. As, however, it involves an important question, which may, ere long, if unsettled, become an exciting one, and as it is by the mutual assent and request of all the parties interested, we concluded to listen to the argument, and make a decision in the case without intending it as a precedent for the future practice of this Court.
The petitioner, a colored man, who was claimed as a slave before the Justice of the Peace, and who was about to have been delivered up accordingly, asserts that he is free. If this be actually the case, the writ of Habeas Corpus was properly brought, being the only means by which the Judge of the District Court could exercise a remedial control over the illegal acts of Justices of the Peace, in cases like this. The proceedings having been transferred to this CouTt, ft will be proper for us to make such a disposition of the matter as might have been made by the District Judge while the subject was before him.
The claimant asks that the petitioner be restored to him as a slave, and principally for the following reasons: — In the first place, that, by the Act of Congress of 1820, which authorized the people of Missouri to form a Constitution and State Government, and which prohibited slavery in all that portion of the old Louisiana Territory lying north of thirty-six dgrees and thirty minutes of north latitude, not included within the then contemplated State, it is provided “That any person escaping into the Territory thus set apart, from whom labor or *6service is lawfully claimed, in any State or Territory of the United States, such fugitive may lawfully be reclaimed and conveyed to the person claiming his said labour or services.” — Under this provision, we are called upon to decide that the petitioner is a fugitive slave, because, although the master consented that lie should come to this territory, and, for aught that appears, remain here for four or five years, still there was an express stipulation that he should, at some future time, pay, to his former master, the sum of five hundred dollars, with inT.erest — that, not having complied with this agreement, he is to be regarded as being here without permission, and, consequently, as having escaped into the Territory.
Such a construction would introduce almost unqualified slavery into all the Free States. The Constitution of the United States contains a provision in relation to fugitive slaves substantially the same as that embraced in the Act of Congress above referred to; so that, in this particular, all the Free States of the Union are in the same predicament as this Territory. — Suppose, then, the Southern Master should permit his slave to emigrate to some of the Free States, upon the express condition that he should remain for ever the slave, or (which is the same thing) the submissive servant of some particular individual, his heirs and assigns. While he fulfils this agreement, he is a slave to his new master in the North, and, as soon as he violates it, he becomes again the slave of his old one at the South, who may, forthwith, reclaim him as a fugitive. We cannot countenance such a doctrine.
From the facts agreed upon in this case, it seems that the claimant permitted his slave to come to this Territory. The permission seems to have been absolute; but there was also an understanding that the latter was to pay the former a certain amount, as the price of his freedom. How the failure to comply with this understanding could render a removal, undertaken with the master’s consent, an escape, we are unable to comprehend. The petitioner is under the same obligation to fulfil this engagement as though, instead of its being the price of his freedom, tlie debt had been incurred for the purchase of any other species of property. It is a debt which he ought to pay, but for the non-payment of which no man in this territory can be reduced to slavery.
We do not say there can be no escape where the slave goes to a Free State by the consent of the master: If, sent upon an errand, or travel ling'in company of his master, he should refuse to return, he might probably be regarded as a fugitive. But this certainly cannot be the case where the journey was undertaken with the understanding of all parties that the slave was going to become a permanent resident of the Free State or Territory.
But it is contended, on the part of the claimant, that slavery is not prohibited in this Territory — that the Act of 1820, above-mentioned, is a mere naked declaration, requiring further legislation to render it operative — that it merely imposes a duty on the States and Territories to be formed within the prescribed limits, but that, without further action on the subject, the law has no sanction, and, consequently, no force. This position, we think, cannot be maintained. Congress possesses the supreme power of legislation in relation to the Territories, and its right to prohibit slavery — at least in relation to slaves subsequently introduced — is doubtless legitimate. Has that right been exercised in relation to this Territory? The language of the Act of 1820, in relation to the district of country in which this Territory is embraced, is, that slavery therein “shall be, and is hereby, for ever prohibited-” — This seems t'o us an entire and final prohibition, not looking to future legislative action to render it effectual.
But it is said that, although the act may prohibit slavery, it does not declare *7a forfeiture of slave property, and that the most which the law will authorize will be, to require the master to remove that property out of the Territory. It is true that the Act, thus mentioned, does not, in express terms, declare a forfeiture of slave property, but it does, in effect, declare that such property shall not exist.
The master who, subsequently to that Act, permits his slave to become a resident here, cannot, afterwards, exercise any acts of ownership over him within this Territory. The law does not take away his property in express terms, but declares it no longer to be property at all. Of course those legal remedies, which can only be resorted to upon the presumption of a still subsisting ownership in the master, become altogether annihilated.
A wide difference exists between the present case and that supposed in the argument, of an act of the Legislature prohibiting private banking. In the latter case the property invested ift that traffic, in violation of the law, would not, in general, become forfeited. But suppose that, instead of prohibiting the investment of property in private banks, the Act should declare that property, so invested, should cease to be the subject of property at all, (and suppose a physical capability in the law to carry out that declaration) could the former owner, after such investment, invoke the aid 6f the laws to restore him what had once been his, but which was now, like the air, rendered incapable of being appropriated by any one? Such is, precisely, the state of things in the case now before us. Property, in the Slave, cannot exist without the existence of Slavery : The prohibition of the latter annihilates the former, and, this being destroyed, he becomes free.
Could the claimant, in this case, retain the custody and control of the petitioner, without invoking the aid of our laws, and without their violation, we certainly should not interfere to prevent him. But when he applies to our tribunals for the purpose of controlling, as property, that which our laws have declared shall not be property, it is incumbent on them to refuse their co-operation. When, in seeking to accomplish his object, he illegal}' restrains a human being of his liberty, it is proper that the laws, which should extend equal protection to men of all colors and conditions, should exert their remedial interposition. We think, therefore, that the petitioner should be discharged from all custody and constraint, and be permitted to go free while he remains under the protection of our laws.