Anderson v. Poindexter (6 Ohio St. 622, 1856)

Bowen, J.

The defense relied on, to prevent a recovery upon the notes, is a want of consideration to support them. The defendants have shaped their pleas and their evidence with a view of pro•senting that question to our consideration in its true aspect. There being no dispute as to the facts which induced the giving of the notes, we may proceed at once to an examination of the points which naturally arise out of those facts.

The plaintiff claimed that Poindexter was his slave, and agreed to set him free for four hundred dollars, secured by the notes of the defendants. It is fair to infer that the several parties who became bound on the notes, believed, at the time of signing them, that the plaintiff’s claim of dominion over Poindexter was valid. They doubtless acted upon that conviction. What motive actuated •the plaintiff does not appear, except that he seems to have been willing to part with his right over the slave for the sum mentioned. He received from him these notes as the price of his manumission. This naturally leads to the inquiry, whether Poindexter was, at the time, a slave, or whether that relation toward the plaintiff, if it ever existed, had not been severed by the acts of himself? It is shown that Poindexter had lived with plaintiff seven or eight years, and had been called a slave, but during that period he had, several times, been sent by his master into this state on business, 627] and ^afterward returned and continued in his service. His actual condition, at any time while he lived with the plaintiff, is not manifest from anything shown in the case. It-does not appear how long he had been in servitude, nor does any presumption unfavorable to his freedom arise from-proof of his color. For aught' that appears he may have been a free white man, supposing himself bound to service. But, regarding him as a slave, before he came into this state by the consent of plaintiff, what effect did that transfer of him from slave to free territory have ? Some enlightened jurists in the slave states admit that if the master take his slave into a free state to reside permanently, that he thereby be-.co mes emancipated, but, at the same time they hold that if he go •there with him for a temporary purpose, although he may, while in -free territory, be suspended in his rights of owner over him, yet .if the servant return voluntarily into the state where he was legally •held to service, the rights and powers of the master re-attach as ■fully as they existed before. This distinction between the effect of a temporary and a permanent removal of slaves is maintained upon the ground that the property of an individual does not cease to belong to him on account of his being in a foreign state, and it is still a part of the wealth of the state from whence it came, and that the moveables of the stranger are held and pass by the laws of his own ■country, and hence the case of a sojourner is different from that of one who moves into a country with the intention of residing there.

The former is subject only to particular laws, and has the title of his property secure, while he who enters and actually resides, is subject to every law. Rankin v. Lydia, 2 A. K. Marshall, 813.

The soundness of this principle, in its general application to property, will not bo dented. But the common law confers no right of proj)orty in persons. It can exist only by «municipal author- [628 ity. Slavery is entirely local in its character, and is repugnant io reason and the principles of natural law, wherever it subsists. 1 Bla. Com. 423. Hence the same rules that would govern ordinary chattels, in their transit from one country into another, and by the comity of nations be enforced for the protection of their owners, do not apply to human beings, over whom no exercise of the rights of ■ownership can be asserted by either the natural or the revealed law. The sole foundation for the exercise of any such right rests in force and wrong; therefore it can not be extended beyond the limits of the government which ordains it. Other countries do not encourage it in any foi*m. The law of England abhors and will not endure the existence of it within the realm, and the instant a slave lands there, he becomes a freeman. 1 Bla. Com. 424. Sir William Draper Best, in Forbes v. Cochran, 2 Barn. & Cress. 448, says: “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 slavei-y is recognized by the local law, they have broken their- chains, they have escaped from their prison, and are free.”

The Supreme Court of Louisiana has adopted the English doc-doctrine on this subject, and overthrown the distinction attempted to be drawn between the temporary removal of slaves into free states, and the taking of them there with the intention of their becoming residents.

In the case of Marie Louise v. Marat, 9 La. 473, the plaintiff’s daughter was taken by her master to Prance, and afterward returned to the State of Louisiana. The court say that if she was taken by the person claiming her services as a slave, to a foreign country, whore slavery docs not exist, and is not tolerated, and by 629] the laws of *which such slave would be entitled to her liberty, for the purpose of her residence, even temporarily, the person taken to such country would become free, and that freedom once impressed upon an individual was indelible, and the status or condition in society of such party could not be changed; for being free for one moment in France, it was not in the power of her former-owner to reduce her. again to slavery.

In Frank v. Powell, 11 La. 499, it was hold that a slave brought into the State of Ohio, whose law forbid? slavery and involuntary servitude, and placed in service by his owner to an innkeeper, becomes free and emancipated by the operation of law, and his former-owner, by whose agency his removal is effected, must be presumed to have consented to all of the necessary legal consequences resulting from his removal to another state, under the operation of its-laws.

In Priscilla v. Smith, 13 La. 341, it was held that where a slave was taken from Louisiana with the consent of the owner to France, although afteward sent back, she was thereby entitled to her freedom from the fact of having been taken to a country where slavery-is not tolerated, and where the slave becomes free by landing on the French soil.

To the same purport is Lunsford v. Coquillon, 14 Martin, 401; Louis v. Caharrus, 7 La. 170; Thomas v. Geneies, 16 La. 483; Vaugh v. Williams, 3 McLean, 531; The matter of Ralph, 1 Morris (Iowa), 1; Sommersett’s case, 20 State Trials, 1; Forbes v. Cochran, 2 Barn. & Cress. 448.

In Massachusetts, it was held, in 1836, that if a slave be voluntarily brought into that state by his master, or comes there with his 630] consent, he becomes free, and can, not be *coerced to return. Commonwealth v. Avis, 18 Pick. 93; Commonwealth v. Taylor, 3 Met. 72.

In Connecticut a similar decision was made in 1837. It was tbo case of a female slave brought by her master from Georgia for a temporary residence, and the court held that the master having left the slave in Connecticut, on a temporary absence from the state, she became forthwith free. Jackson v. Bullack, 12 Conn. 38.

In this state not only are our institutions and usages, and the sentiments of our population opposed to, and at variance with the institution of slavery in whatever form it may assume* but the ordinance of July 13,1787, for the government of the territory northwest of the river Ohio, prohibits, in express terms, its introduction here for any purpose whatever. By its imperative language it is denied any vitality on our soil. Its manacles instantly break asunder and crumble to dust, when he who has worn them obtains the liberty from his oppressor, and is afforded the opportunity by him of placing his feet upon our shore, and of breathing the air of freedom. To the terms of this ordinance, in this respect, all of our laws, subsequently enacted, have conformed. There has never been a period during our slate government, when a slave could for one single moment, by the consent and act of its owner, be placed and continued in bondage here.

If we look to the reason of the rule which controls personal ' property, and to the comity of nations and states which guarantees security to its owner, we experience no difficulty in confining its operations to things which, in all countries, are proper subjects of acquisition and of ownership, and of excluding it from objects not embraced within the term property, as understood and defined by the common law. In the one case it is the exercise of a natural *right, coeval with man’s existence, and consistent with the [681 laws of the Creator and the principles of justice. In the other it is the maintenance of a claim to, and the exaction of service from, another by force and oppression, by a violation of laws and principles, both human and divine, under the sanction of local and peculiar legislation.

Kentucky can not, by the law of comity, demand of this state an abrogation of its constitution and municipal laws, to promote any of its own peculiar institutions, or interests; nor can Ohio make any such demand of Kentucky. Neither the obligations of duty, nor the principles of humanity, which all civilized nations recognize, in certain cases, as due from one to the other, can over warrant the making of such demand.

Strengthened, therefore, as we find the case to be, by the clearest principles of natural law, and by the decisions of courts of high character, we have no hesitation in arriving at the conclusion that Poindexter, in coming into this state by the consent and license of his master, obtained thereby the freedom of which he had been before deprived by local municipal legislation. His servitude, from ■that hour, ceased, and there is no law which can bring into operation the right of slavery when once destroyed. No right to a slave can be revived after the right has passed to the slave himself, .and he has become free. His subsequent return to the plaintiff, in Kentucky, could produce no such result. For, says Justice Mills, in Rankin v. Lydia, ubi supra, “ shall it be seriously contended that so soon as he transported her to the Kentucky shore, the noxious atmosphere of this state, without any express law for the purpose, clamped upon her newly-forged chains of slavery, after the old ones were destroyed ? For the honor of our country, we can not, for a moment, admit that the bare tendency of its soil is thus dangerous to the degraded African.”

*The court below properly gave judgment for the defendants for another reason. By the laws of Kentucky, no slave can make a contract with his master, or with any one else, for any purpose whatever. He can not bargain even for his freedom, and bind himself, or others for him, by contract. All agreements of that character are held to be void. Thus, in Willis v. Bruce, 8 B. Mon. 548, the court of appeals held that a promise to, or an executory contract with a slave by his owner, that he should be emancipated, is not obligatory, and can not be enforced, either at law or -in ■equity. Slaves can be emancipated in no other way than such as is prescribed by law. Dunlap v. Archer, 7 Dana, 31.

For this, as well as for the other reason above given, we are of ■opinion that the judgment of the district court should be affirmed.

Brinkerhorr, J.,

concurring. For the reason that the principles involved, in this case are of great moment, and are now regarded with general and peculiar interest, I will so far depart from the ordinary usages of the court as briefly to state separately the grounds on which I place my concurrence in the judgment we are about to render.

The case made in the pleadings and proof is this:

Henry Poindexter, held as a slave in Kentucky, executed, together with his co-defendants as sureties, to the plaintiff, Anderson, who claimed a legal right to hold him, the promissory note sued «on in the common pleas of Clermont county, in this state; in consideration of which note, and others, the plaintiff agreed to and did release Poindexter from the slavery in which he was held, and promising to give him his “ free papers,” or deed of emancipation, so soon as this note, and other notes given at the same time and for the same consideration, should be fully paid. Before the giving ■of these notes, Poindexter, with the *knowledge and consent, [633 and sometimes by the direction of Anderson, had in several instances come into the State of Ohio, and after remaining a short time in doing the errands on which he was sent, had voluntarily, but probably in ignorance of his rights, returned into Kentucky .and resumed his residence with Anderson. After the giving of the notes, Poiiidexter labored awhile for Anderson for wages, and then took up his residence in Ohio.

The case in the common pleas was submitted to the court for trial, and a judgment was rendered for the defendants. The jDlaintiff then appealed to the district court, which also gave judgment for the defendants. And to reverse that judgment this petition in error is prosecuted.

Two questions properly arise in this case:

1. It is contended for the plaintiff, that the case, by the comity ■of nations and states, is to be determined by the lex loci contractile, and that by the laws of Kentucky, where the note sued on was executed, it was a valid note.

Now, granting for the sake of argument — what I do not admit, but what on the contrary I deny — that the lex loci is to decide the validity of this note, how then stands the case?

Under the laws of Kentucky a slave is incapable of contracting. He can hold no property; he can acquire no rights; his natural domestic relations even are ignored. He has not a right to the child he has begotten, to nurture it, nor to the wife he has chosen and cherished, to protect her. According to the theory of those laws, the slave belongs to the master as property, and descends to his heirs as real estate. No contract can increase the liabilities of the ■one or the power of the other. A contract of emancipation imparts to the slave no legal right, and imposes on the master no legal obli.gation. It is simply nugatory and void. The promise of the slave to pay money in consideration of such a contract is null. Being null'when *mad.e, no subsequent act of emancipation on the [634 part of the master can impart to it any new force. It thus results logically from the theory of the slave code of Kentucky, that the note'which the plaintiff now seeks to enforce here was invalid there. And moreover, by chapter 93, article 9, of the revised statutes of that state', and which seem to be still in force, emancipation, except, by deed or last will’ and testament, executed in conformity to its-provisions, is prohibited; so that, under the legislation of Kentucky, Poindexter has never yet been legally emancipated, and thereby rendered competent to contract.

2. But were it otherwise, could this note be enforced by judicial procedure in Ohio? By the laws of nature, all persons are free; no human being is born, or can be born, a slave. The laws, by a stretch of courtesy, so called, of particular countries or states, may subject certain persons to be held and treated as the mere transferable instruments of other persons; and this subjection, which constitutes slavery, originating in force and fraud, and uj>held by local laws which adopt and sanction the original wrong, may attach immediately after birth, as the effect of positive law in derogation of natural right; but still it remains true, that the absolute and equal freedom of all persons at birth is a fundamental principle'of American institutions, .proclaimed with independence, and incapable of abrogation. This principle was, by the ordinance of 1787, impressed' on the soil of Ohio before there was an organized community within, her limits. It is fundamental in her organization- — -always embodied in her constitution; and her laws, her policy, and the convictions,, the morals, and the religion of her people, are instinct with its spirit-.

The moment any person comes within the territorial limits of Ohio, his personal rights are ascertained and determined by the constitution and laws of Ohio.

*There is no exception to this rule, save in the case of a. person who, being held to service in another state, escapes into this. In such a case, the constitution of the United States declares that the fugitive “shall be delivered up on claim of the-party to whom such service or labor may be due.”

There is nothing in this article of compact which gives any sanction to that slavery, the essential elemon.ts of which is asserted property in men — nothing inconsistent with the purpose of the framers of that constitution, clearly manifested in their debates, as reported by Mr. Madison, to avoid all recognition of “the idea that there may be property in men.” 3 Madison Papers, 1429-1430.

It establishes no rule which does not apply equally to all “ persons held in service.” It takes up and deals with the broad and general relation of “master and servant,” but has.nothing whateveito do with the relation of owner and property.

When, therefore, a person held as a slave in another state escapes into this state, he ceases to he, in any proper sense of the word, a .slave. And the courts of Ohio, I apprehend, would decline to recognize or enforce any contract of purchase or sale, wherever made, •of which he might be the subject while thus-within our limits. The relation of subjection as property, created by the local law of the state he has left, can not follow him beyond the limits of the sovereignty which established it. In Ohio, he is a man; liable, it may be, to be delivered up on due claim and proof, but yet a man, “ a person held to service,” and, in every other respect than this, a freeman. When once so delivered up, and taken back to the state from whence he escaped, the relation of slave may re-attach under the local- law. Until then, subject only to this liability, he remains free.

In the case now before this court, there was no escape from Kentucky into Ohio. Poindexter came into Ohio, on ^several [636 occasions with the consent or by the order of the plaintiff. So coming, he was beyond the reach of the local law that enslaved him, and subject to no claim as a fugitive servant. So coming, he became entitled to the full benefit of the express prohibition of slavery by our state constitution. To all intents and purposes whatsoever, he was free. His condition or status was that of a freeman. His master, by consenting to his coming, must be hold to have consented to his freedom, which, whether he consented or not, was established by law. And being thus free, wherever he might go or be taken, he could not again be enslaved by any law which this -court can recognize as valid.

And this doctrine has been frequently held even in states where enforced property in men, with all its repulsive features and odious attributes, is sanctioned and upheld by local law. Marie Louise v. Marat, 9 La. 475; Smith v. Smith, 13 Ib. 444.

If a person held as a slave can be brought or sent into Ohio for one hour, and still retain his status as a slave, then the same thing •can be done for a day, a week, a month, a year, a lifetime; and thus this institution, the shame of our country and the opprobrium of Christendom-, be virtually established on a soil so early, so often, and so solemnly devoted to absolute freedom.

From the declaration of independence until very recently, it was never questioned that, in the United States, a person once legally free is always free. The doctrine has been regarded as a part of American common law. Courts have differed as to facts which constitute a title to freedom, but have, almost with one mind, concurred in the doctrine that no man once free can be again enslaved1 except for crime. In my judgment — and such 1 understand to be-the judgment also of four of the five members of this court — Poin637] dexter, having come into a free state otherwise than *by escape, was free; and-having thus become free, could not again be reduced to slavery. And this opinion governs the decision of a majority of the court; because, if free, the note given in consideration of emancipation, was without consideration, and therefore void. And the obligation of the sureties is an incident to, and is limited by, the obligation of their principal.

But it is said that the note was at least given in consideration of a compromise and release of a doubtful claim, and therefore is valid. Not so; the promise was made by Poindexter, while under duress, and wrongful duress, in consideration of release from that usurped dominion, and therefore imposes no valid obligation either in morals, or in law. 1 Parsons on Contracts, 319; Mays v. Cincinnati, 1 Ohio St. 268.

We-are awai’e that in Kentucky it has been decided that a person-held as a slave in that state, who may have been taken for a temporary purpose into a free state, and brought, or coming back again, is not thereby enfranchised, but is remanded to the condition in which he was before held ; and it is urged that .the principle of international and inter-state comity requires us to recognize and enforce this rule. The clear and sufficient answer to this claim is, that comity is not a matter to be demanded as a right, else ft would cease to-be comity. Like courtesy among individuals, how far the principle of state comity shall bo carried in any case or class of cases, is-at the discretion of the state called on for its' exercise. And no-state of the civilized world has ever felt itself bound to carry the doctrine of comity to the extent of subverting its own established policy.

But it is said it is no part of the policy of Ohio to discourage emancipation in Kentucky. This is true ; and it is also true, that it is no part of the policy of Ohio to encourage emancipation in 638] Kentucky. Ohio has nothing to do *with the subject of emancipation in Kentucky. But she has something to do with the status of persons coming within her own jurisdiction, and it is properly part of her policy to see to it that a violation of the rights growing out of that status shall not, in her courts, be recognized as a valid foundation of a legal obligation.

The enslavement, by local authority, of a man once free, presents the monstrosity of a legalized wrong; it is iniquity intensified and hardened into law; and when the subject is legitimately before us, it is due t.o that principle of righteousness which is the soul of all law worthy of the name, and it becomes us, as the administrators of such law, to protest against, condemn, and, as far as may be, consistently with constitutional obligation, to nullify it because it is wrong, rather than to lend it an indirect sanction through a morbid exaggeration of the spirit of courtesy.

The policy of Kentucky is to uphold the claims of masters. Her courts, upholding this policy, refuse to recognize any obligation, of comity or otherwise, to enforce the Ohio rule of freedom. Collins v. America, 9 B. Mon. 572.

The fundamental, organic, and unremitted policy of Ohio is, to maintain the rights of men; and her tribunals, giving just effect to this policy, muso not permit themselves to be moved, by the plea of comity, to turn aside from the plain path it prescribes, to the support of the Kentucky rule of slavery. This policy of Ohio is hers by virtue of her own sovereign choice. She will, I trust, never permit it to be called in question. If she does, she will doubtless find suitable organs for the utterance of her altered will; but, as an humble member of this court, I can never consent to become the medium of its surrender.

J. R. Swan, J.,

concurring. This case involves an inquiry as to the status or condition of a slave, under the Constitution and [689 laws of Ohio, who is sent into this state to perform here menial services for his master. Upon this part of the case, I desire to state the reasons which induce me to concur in the opinion of the majority of the court.

Some states deem it good policy to subjugate one class of their people to the other, thus creating obligations on the part of the ruling class as to support and treatment, and forming a government for the subjugated class, in respect to services, very similar to that which usually exists between man and his domestic ■ animals. In such states the government or law of the subjugated class is the will of the master, who appropriates the fruits of labor to his own use, and sells, or otherwise disposes of his fellow. This is slavery or property,in men. It has never existed in Ohio. It is against our policy, not only because it is a violation of the rights of man, and destroys all manliness, but because it brings a servile and degraded class into competition with mechanics and free laborers, who require higher compensation than the ordinary hire of slaves; bc< ause it creates a ruling class, the adjunct of wealth, whose position controls, and whose habits deprave public opinion, by making idleness respected, and labor the associate and the emblem of servility and degradation; thus sapping the very foundation of the virtue, wealth, and power of the state, by driving out the middle class — the mechanics and yeomanry of manly pride and enterprise — who are too poor to be masters; and dooming the poor and the ignorant who remain, to a base position, social, “and even political, little better than fellowship with slaves.

Our policy in regard to an institution so unjust, and so fraught with disaster to the great mass of a free and enterprising people, has not been left to the discretion of the legislature or the courts. Both are concluded by the express terms of our organic law. That 040] declares, what is in ^'accordance with reason and justice, the freedom of all men. It further declares that freedom to be the natural and inalienable right of all men. Thus:

“Art. I, Seo. 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property.”

And as if to surround with further safeguards these jn’inciples and our own policy, the following provision was incorporated into our constitution, and is equally emphatic:

“Art. I, Seo. 6. There shall be no slavery in this state, nor involuntary servitude, unless for the punishment of crime.”

With these provisions in our constitution, it can not be matter of inquiry what our policy is in regard to slavery. It is very clear that slavery could not exist anywhere if our constitution had universal operation.

Now, conceding that neither the constitution of the United States, nor international law, nor the law of comity, interferes with these provisions of our constitution, and that the slave systems of other states and nations have no operation or effect whatever, beyond their own territorial limits, it is too clear to admit of doubt, and has not, I believe, been questioned, that these provisions of our consti•tution would operate upon the status or condition of every man, tho moment he came within the territorial limits of our state; and that whatever may have been his condition, as serf in Eussia, or slave in Africa, or elsewhere, their slave laws must at once yield to our ■constitution, and that those slave laws could not, either absolutely or in a modified form, fix the status of any man, or suspend in any degree, tho operation of our own constitution within our own limits.

That the constitution of 1802, which contained similar provisions, acted, when it operated at all, directly on the *status [041 of a slave, sent here voluntarily by his master, dissolving the relation, and terminating the claims of the master existing- under tho law of the country whence the slave came, has been uniformly held, and without question, ever since tho existence of the state. Such also was the effect given to the ordinance of 1787; and it could not be otherwise. Sommersett’s case, decided in 1772, was recognized, and is still recognized, as the true exposition of the common law; and, with a view to it, the ordinance and our constitutions were adopted. I shall have occasion hereafter to state what was decided in the Sommorsctt case.

This effect of our constitution upon the status of slaves, within ■our limits by the consent of the master, has been constantly applied by the judges and courts of this state from year to year, and has been so uniform and unquestioned, and met with such entire acquiescence, that the Supreme Court of this state have never had occasion to report a decision upon it. And there is no hardship in the operation of our constitution in this respect. Its effect is as well understood on the south as on the north side of the Ohio river. If a master voluntarily places his slave in a situation which works his manumission, it is in every respect as much his own voluntary act as the execution of a deed of manumission.

In the case of Dred Scott v. Sandford, 19 How. 590, 591, the various modes in which the laws of states and nations who do not recognize slavery, operate upon slaves, are classified by Mr. Justice Curtis, and the decisions of their courts are ably reviewed. Tho result is, that each nation, and the free states of tho United States, in some of which slavery existed, and is still temporarily allowed, have different municipal laws upon the subject; and the decisions of their courts as to the status of a slave and the rights *of [642 the master, are instructive precedents to us, just so far as our constitution and laws are identical with theirs.

No rule of international law can, it is believed, interfere with the operation of our constitution in such case. Our policy and institutions in regard to slavery are too clear to admit of doubt. In the case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 611, Mr. Justice Story, in delivering the opinion of the court, says :

“ By the general law of nations, no nation 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.”

I shall have occasion hereafter to cite some other authorities uj>on international law, bearing on this subject and the comity of states ; but I deem this sufficient and authoritative, as the principle here stated is too well settled to admit of question.

If, then, a slave is sent into this state to perform menial offices for his master, ho must by our law be deemed a free man, unless the constitution of the United States, or the municipal law of the state from whence he was sent, can operate upon his status here.

As to the constitution of the United States, it will be found, on examination, that its provisions, and the adjudications of the Supremo Court of the United States, have no application to the question before us.

It may be that the signs of the times require a recurrence to the great and well-settled landmarks which divide federal powor from state sovereignty; particularly to that fundamental provision of the constitution of the United States, which declares that “ The powers not delegated to the United States by the constitution, nor prohib 648] ited by it *to the states, are reserved to the states respectively, or to the people.” Amendments of 1789, Art. 10.

This provision leaves the states respectively in the full’ exercise of their sovereignty, except so far as the same is devolved upon the federal government. It limits and restrains the federal government to the exercise only of those powers which are delegated to it by the express terms of the constitution; and was undoubtedly inserted for the double purpose of asserting state sovereignty, and preventing the enlargement of the limited, powers of the federal government, by construction or otherwise.

It is conceded by the most licentious interpreters of federal power, that the states have, in general, entire and supreme control over the domestic relations of citizens, and that the federal government, in the absence of all express general power, has no jurisdiction whatever over the rights, obligations, or duties of parent and child, guardian and ward, or master and seiwant, in the several states of the Union.

On the other hand, any power delegated to the federal government by the constitution of the United States, in respect to these domestic relations, or any power over these domestic relations withheld from the states by the constitution, is of equally binding obligation.

There are obvious reasons for recurring to these old, familiar,, and well-established principles, which need not be stated.

In the formation of the federal constitution, the only provision which relates to the domestic relations of citizens, is the following: “No person held to service or labor in one state, under the law thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or *labor may be due.” If this provision had been omitted, [6M each state could have made any law or regulation it deemed proper as to the reclamation of slaves escaping from one state into another'; and the interference of the federal government upon the-subject would have been a usurpation of power. But with this provision in the constitution, every state is prohibited from enacting any law whereby a fugitive from service, escaping from one state into another, shall be discharged. It has the same binding-obligation as any other provision of the constitution, and is in letter and spirit to be obeyed by,the people and every department of the government, state and national.

I repeat that this is the only provision in the constitution of the United States which relates to master and servant; and it is limited and restricted, by its own express terms, to certain specific cases. To bring a case within its provisions, and its prohibitions, of state law and regulations, the following facts must exist:

1. The person to be delivered up must be held to service under and by virtue of the laws of the state from which it is alleged that, ho escaped.

2. He must be claimed by the person to whom the service is due.

3. He must have escaped, that is, left the service of the claimant, without his consent.

What I have thus far said, is in accordance with the repeated. •decisions of tlie. courts of the United States, and of the several states. Thus, Chief Justice Taney, 19 How. 447, says: “ The principle upon which our governments rest, and upon which alone they continue to exist, is the union of states, sovereign and independent, within their own limits, in their internal and domestic concerns, and bound together as one people by a general government, 645] *possessing certain enumerated and restricted powers, delegated to it by the people of the several states.” In Groves v. Slaughter, 15 Pet. 508, the chief justice says : “ The power over this subject (slavery)'is exclusively with the several states; and each of them has a right to decide for itself, whether it will, or will not, allow persons of this description 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 can not 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.”

In Prigg v. The State of Pennsylvania, 16 Pet. 611: “ The state of slavery is deemed to be a more municipal regulation, founded upon and limited to the range of the territorial laws.” And the court further say: “ It is manifest from this consideration, that if the constitution had not contained the clause requiring the rendition of fugitives from labor, 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.” But it is unneeessary to multiply authorities upon this question.

Next, as to the scope of the provision of the constitution of the 'United States relating to fugitives.

In the case of Butler v. Hopper, 1 Wash. C. C. 499, it was hold by Mr. Justice Washington, in terms, that the provision in the constitution of the United States relating to fugitives does not “ extend to the case of a slave voluntarily earriod by his master into another 646] state, *and there leaving him under the protection of some law declaring him free.” The ease sustains the principle, that the claimant of a slave, to avail himself of the provisions of the consti tution and laws of the United States, must bring himself within their plain and obvious meaning; and that they will not be extended by construction; and that the clause in the constitution is-confined to the case of a slave escaping from one state and fleeing to another. So, in Ex parte Simmons, 4 Wash. C. C. 396, the same eminent judge held that both the constitution and laws of the United States apply only to fugitives, and not to the case of a slave voluntarily brought by a master into another state. To the same effect is Commonwealth v. Holloway, 2 Serg. & Rawle, 305; Commonwealth v. Avis, 18 Pick. 222; Fields v. Walker, 23 Alabama, 155. And the same doctrine is stated in the case of Prigg v. Commonwealth of Pennsylvania, 16 Pet. 611.

It has been held that, inasmuch as this provision of the constitution, by its express terms, describes the source of the servitude of the person escaping, by the words, “ held to service or labor in one state, under the laws thereof,” the inquiry, whether the fugitive owes-service to the claimant, must be determined by the laws of the state from whence such fugitive escaped, and not by the laws of the state whore he is seized. It has also recently been held, in some of the slaveholding states, that whore the master has taken his slave to a free state, and the. slave has become a freeman by the laws of such free state, he still remains a slave if by force or otherwise he returns to the slaveholding state. And it has been further held, under this provision of the constitution, that if such freeman by the laws of one state, and a slave by the laws of the state of his original domicil, after returning or being returned to the slaveholding state, escapes to the state where by *law he is a freeman, he may bo re- [647 claimed by his master, under this provision of the constitution, as a fugitive slave; because ho is in fact, and under the laws of such slave-holding state, held to service and labor, and his status, by the terms-of the constitution, is determined by those laws. Now, if it were conceded that this is a fair and legitimate construction of the constitution of the United States, it can only be by force of its express-language.

It would be doing injustice to the motives and opinions of the Supreme Court of the United States to say that this conflict of law between a free and slaveholding state, as to the status or condition of a fugitive from labor, who is a freeman by the law of one state, and re-enslaved by the law of another, was determined by that court in favor of the law of servitude, on the ground tnat a free state, or its law upon this or any other subject, is subordinate to, or can be superseded by, the law of a slaveholding state. Oh the contrary, the whole doctrine rests on the terms of the provision of the constitution to which I have referred; and the court hold that the constitution itself, by its own express terms, determines which of the conflicting laws of the two sovereignties shall, in the case of a fugitive from labor, settle the status or condition of the fugitive. The Supreme Court of the United States refuse to revise the judgments of the state courts when the laws of two states thus conflict as to the status of a man, having no jurisdiction over it, except in the case of fugitives. Strader et el v. Graham, 10 How. 82.

There is a numerous class of cases in the Supreme Court of the United States in which the court determine questions relating to the construction of the constitutions of the several states, thestatus •of persons in the several states, and the conflict of laws, but which decisions have not, and the Supreme Court do not claim that they 648] have, *any binding obligation upon the states of the Union, or the state tribunals. For instance, the suit now before us might have been brought in the courts of the United, States, the parties being citizens of different states. In determining whether the note sued upon was given for a valid consideration, the same questions •as to the status of Poindexter under our constitution and the laws pf Kentucky might have been presented, and the opinion of the court pronounced. The judgment of the court upon the note would have been conclusive between the parties to the action; but the determination of the court as to the status of Poindexter here or in Kentucky, or upon the construction of our constitution, would have •concluded nobody but the parties to the suit, and would have been entitled, in the state tribunals of Kentucky and Ohio, to the same •respect and consideration as the opinion of any-state court of tho Union, upon the same questions, composed of judges of equal ability and impartiality.

Whatever construction may be given by the Supreme Court of the United States to the constitutional provision relating to fugitives, whereby the laws of a free state are rendered inoperative, it grows out of, and is limited and restricted to, cases coming within that provision, and the force of its language in respect to escaping slaves.

While, therefore, the states of the Union have no power to pass any law which shall discharge a person owing service, and who has •escaped, and the right of the master to reclaim such person, is guaranteed by this provision of the constitution, the delegated pow•ers of the federal government upon this subject end here. If a slave has not escaped from his master, but is brought here or sent here by his master, his status or condition here must be determined, by the constitution of Ohio, or by the laws of Kentucky, *or [649 by the laws of comity of Ohio. Neither international law, nor the constitution of the United Stases, nor the decisions of the Supreme Court determines his status.

And first, as to the laws of Kentucky. It has been too often -determined to admit of cavil or question, that the laws of each state have no extra-territorial operation within the jurisdiction of another, except such as may be adopted by her laws ; and if, by comity, operation is given to the laws of such other state, they are no longer extra-territorial, but become thereby the municipal law of the state which adopts them.

This principle, and'its apjDlication to the case before us, may be illustrated, and my own views enforced, by referring to the conflicting laws of the free and slaveholding states of the Union, in relation to the status of persons within their limits.

Manumission in the slavoholding states, must, in general, take place by deed or writing. But there may be acts done by the master, which show as unequivocally an abandonment of his rights to the servitude of his slaves, as a deed of manumission.

It may now be considered as the settled doctrine of the .slave-holding states, that if the master takes his slave to a state where by law slavery can not exist, it must be coupled with such circumstances as show an abandonment, in fact, of the rights of servitude ; and the mere fact of a master taking his slave to such free state, does not, in general, work a manumission of -slaves, who, by force or otherwise, are brought back to a slave state. The laws of the free state in such cases, play a very subordinate part; for they must not only-be adopted and assented to by the master, but acts showing his adoption and assent to the operation of those laws must appear, otherwise they have no effect whatever upon the original or subsequent status *of slaves. Thus, if a master [656 hires out his slaves in a free state, although by the law of the free state they thereby become free, yet if by force, or otherwise, the master gets them under his control in the slave state, they are deemed slaves, and were never free. And the reason for this de•determination is, that by hiring them out temporarily, he showed his intention to retain his dominion over them, and did not intend to permit the laws of the free state to operate upon them.

But if a master goes with his slave to reside for an indefinite period in a state where slavery is not tolerated, this, according to-the modern and well-settled principles of the slave system, operates as an act of manumission on the part of the master; not that the law of the foreign state propria vigore dissolved the relation of master and slave, but this act, and domicil of the master or coming to reside, is held to be sufficiently expressive of his consent that the slave should be free. 2 Marsh. (Ky.) 470; 14 Martin (La.), 401. Now this is not recognizing the force and effect, of the law of a free state, which declares that there shall be no slavery within her territorial limits; and which absolutely dissolves thc relation, and terminates the rights of the master existing under the law of the country from whence the parties came; for such law does not operate, in the state where it exists, through the master as an act of manumission, nor does it operate through the acquiescence of the master in the law or in the effect of the law; for it recognizes no master, and, to operate, is subordinate to no acquiescence. It propria vigore, dissolves and annuls the relation of master and slave. As a part of these adjudications in the slaveholding states, if the act of the master was not sufficiently expressive-of his consent and acquiescence in the operation of the law of the free state, so as to amount to an act of manumission under their 651] law *(and what acts are sufficient is determined differently in the different states), they further hold, that the law of freedom of the free state, had no effect whatever upon the original status of the slave taken there, except to suspend the rights of the master, only while the slave was a freeman under and by virtue of the laws of the free state. This last-mentioned rule also disregards the force and effect of the extra-territorial law of freedom, because extra-territorial; and is adopted on the ground that their own policy, in preserving intact their system of slavery, can not yield to the international law of comity. The laws of the free states are disregarded.

It need not, perhaps, be said that we can not'treat our own-constitution as extra-territorial and suspended by the laws of a foreign state.

The laws of Kentucky, therefore, and the adjudications of their-courts as to the force and effect of our laws, extra-territorially considered, do not determine the status of Poindexter under our laws, administered within our own territory, when ho came into this state. But suppose we adopted them, mutatis mutandis, and'by them gave the same operation to our law which the slavcholding states give to their own, the effect would be this : The law of Ohio, like the law of each slaveholding state, determines and fixes the status or condition of a man within this state, and by that law ho is a freeman; and if afterward the status of such freeman is determined by the law of a foreign jurisdiction to be that of a slave, such extra-territorial law can have no force or effect, propria vigore, in determining the personal rights of such freeman, when those rights are the subject of inquiry under our own law, by our own tribunals. He is still a freeman by our law, and his personal rights are suspended merely, and not abrogated, while he remains in the foreign jurisdiction. And, in my opinion, *this is the law [652 of the present case, drawn, too, from a source which our sister slaveholding states can not gainsay.

But it may be said that whatever may be the operation of the law of Ohio upon the status of Poindexter while here, by returning to Kentucky voluntarily, and entering into negotiations afterward for his manumission, he thereby waived his right to freedom under the law of Ohio, and consented to his bondage under the law of Kentucky.

If his return to Kentucky had any operation upon his status_ it could take effect not on our own soil, or within our own limits; for, while here, he was still a slave or he was a freeman. If still a slave here, the whole question is disposed of by the law of Kentucky operating within'and becoming the municipal law of Ohio. If our law operated at all upon his status, it operated as our law operates upon every other person, instantaneously, when he came within our limits. He was denuded of the municipal law of Kentucky, and invested with the rights and subject to the obligations of our own law, when he passed the conterminous line of the two states. He was then free. Could he, by our law, afterward bo made a slave ? That he could, by the law of Kentucky, be again subjected to bondage is conceded; and it is done there, not by recognizing the force or effect of the extra-territorial law of Ohio, but by disregarding it, and holding that he was not a' freeman while in Ohio, but, in the language of the court of appeals of Kentucky, “the master submitted to a temporary suspension of his right, or rather of the legal means of coercion.” He was a freeman', however, by our law; and the question still remains, could he, by ■our law, be afterward made a slave ?

In Ohio, as I have already stated, the right to freedom is inalien■able. It is an old principle, instinct with meaning, born of the 658] revolution, and embodied into our constitution. *With the •constitution we might leave the question. But in the slaveholding states a man, once free, can not become a slave by agreement or •consent. His condition as a slave is fixed by descent, or by the violation of some municipal law. If Poindexter, by coming into Ohio by the consent of his master, was, by the law of Kentucky, a freeman, his voluntary return to Kentucky would not, by their law, have made him a slave. Once free, always free, except for the violation of law, is the rule there and herd? Rankin v. Lydia, 2 A. K. Marsh. 472. If the status of Poindexter, by coming within cur territorial limits by the consent of his master, and while here, was determined by our law; if the law of Kentucky and the rights and power of the master did hot here attach to him, and could not then be exercised, it is clear that no law of Kentucky, much less any law of Ohio, could afterward, by his voluntary return to Kentucky, or by any agreement, make him a slave. I can not state this principle in language more forcible and apt, than that used by the court of appeals of Kentucky upon the same ¡subject, in regard to their own law:

l:¥e are not aware of any law in this state which can or does 'bring into operation the right of slavery when once destroyed. It. •would be a construction without language to be construed; implication without any scrap of law written or unwritten, statutory or -common, from which the inference could be drawn to revive the right to a slave when that right had passed over to the slave him¡self, and he had become free.” Rankin v. Lydia, supra.

The most, perhaps, that can be said of the legal effect of the voluntary return of Poindexter to Kentucky is, that he thereby submitted temporarily to a suspension of his personal rights as a freeman, or rather of the legal means of asserting them.

*It has been asserted that the legal claims of the master are-•suspended merely by sending his slave to this state, under the circumstances detailed in this case; so, at least, it is said in Kentucky. I have already shown that this position is founded in Kentucky ;upon a disregard of the force and effect of the provisions of our ■constitution, which being extra-territorial, is held to have no binding obligation there. And this position is also maintained in Kentucky, because, under it, they avoid the application of the principle that a freeman can not be enslaved. The rule, however, is commended to us for adoption, not to give operation to, but to avoid the express provisions of our constitution; to regard those provisions, in effect, as extra-territorial, and to introduce in their place the recognition of existing, but suspended slavery rights, under ■the municipal law of Kentucky, within our own territory. As Poindexter was not a slave by our constitution when he passed into our state, but free, the recognition of any suspended, or other claims ■of servitude resting upon his person, would be a contradiction of terms ; it would be holding that he whs still a slave; and the introduction, by the sanction of the court, of modified slavery, and a violation of the principles and the terms of the constitution of the state.

It may be said that slaves, being property, must, when sent or ■brought here by their masters, be treated as property, and protected like other property of foreigners, who are transiently within the state. This is quite a modern discovery in the application of international law.

The application of international law to property in slaves may be a proper subject for discussion when it shall be shown that the local, municipal law of a foreign state, creating an ownership in man, can be conveyed in itinere to another state, which by its own law destroys all such artificial ownership, and where its exercise is positively forbidden ; *that the law of personal rights in [655 ■one state or nation shall, in defiance of her own law and state ■sovereignty, be stricken down and become subordinate to -a municipal and local law of a foreign state, under a claim of property in those personal rights. These things can not be. No international law binds nations to sacrifice their own laws or policy to that of others. The rule on this subject can not be thus evaded : “ The ■state of slavery will not be recognized in any country whose institutions and policy prohibit slavery.” Story’s Confl., sec. 104. And what are the incidents of property in slaves, where none of the incidents of slavery will be recognized ?”

If slavery, as an institution, existed among all nations, the ruling class of all nations would probably find it for their interest to respect the domination of each other over the subjugated class, and call ifc property. Indeed, property in slaves is but another name for the power of the master over the slave, armed by municipal law, to use him as the implement of his will; and the one can not be acknowledged without the introduction of the other — it is slavery and the slave system masked under the mild name of property. The distinction is without a difference.

The constitution of the United States regards and acts upon slaves as persons and not as property. “ Persons held to service “ the migration or importation of such persons as any of the states-now existing shall think proper to admit,” meaning, by this circumlocution, the slave trade; “ representatives and direct taxes shall be apportioned among the several states according to their respective numbers, which shall 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” — meaning three-fifths of the slaves. There is nothing in 656] the constitution *of the United States taking from the states and delegating to the federal government, power over slaves as-property.

The Supreme Court of the United States, by holding that a slave-holding state could prohibit the introduction of slaves into it as merchandise, and for sale, have virtually decided the question. Groves et al. v. Slaughter, 15 Pet. 506.

As to the law of comity.

When a state adopts the law of a foreign state, by comity, she makes it a part of her own municipal law.

If such law relate to policy or institutions, the state adopting the foreign law, so far modifies and changes her policy or institutions. The adoption of such foreign law is an act of the state, not the courtesy of judges. It would be the highest exercise of legislative power, and usurpation of authority, for a court, out of regard for a foreign state or its institutions, to introduce, as an act of courtesy or comity,'a foreign law or institution, contravening the policy, laws, or institutions of a state.

We are called upon, in this case, to introduce into the municipal law of Ohio, as a matter of comity, so much of the slave laws of Hentucky as will recognize the coercive rights of the master in Ohio, and thus suspend the operation of our own constitution. We have no authority to do either. The municipal law which enforces the slavery of man to man, being condemned and forbidden by our constitution, we can not change, alter, or suspend it.

With entire respect, we must say to Kentucky, as was said to Ohio when disregarding our law upon this same subject, and I quote it because I believe it is the true doctrine of international law : “Comity does not require one state to violate its own laws or policy to enforce the laws of another.” Collins v. America, 9 B. Mon. 572, syl.

Suppose the legislature of Ohio should undertake to introduce slavery into Ohio in the mildest form, by enacting *that the [657 masters of slaves should have a right to bring their slaves here, temporarily, to work for their masters, or to do menial offices for them while the masters were in itinere, or on temporary visits, and that while so here, some or any coercive rights and domination over the slaves should be vested in the master by our law. If this would not be slavery existing within our limits, and sanctioned by our own law, what would it be? It is slavery, modified, to be sure, as compared with that of slaveholding states, but, nevertheless, ■slavery. Such a law would be a palpable violation of our own constitution, and void. And this court can not, on its own mere courtesy, suspend the operation of the constitution, disregard its terms, ■and announce as law what the legislature is forbidden to enact.

Before closing this opinion, it is proper to refer to some of the decisions of other states, which have been discussed in this case.

I have already stated that the ordinance of 1787, and the constitutions of 1802 and 1851, were made with a view to what was understood to be decided in the Sommersett case. I confess that I have always understood that slavery could not exist in England, and that such was the law before the decision of the Sommersett case. I think such is the general opinion now, both in England and in this country.

It has been suggested, however, that the decision turned not on the question whether slavery could exist in England, in the absence •of any positive law to uphold it, but that the only question decided, was, whether a slave, which was brought from Virginia, could bo held in custody to be taken to Jamaica to be sold. The ease was as follows:

“ Oh the 3d of December, 1771, affidavits were made by Thomas Walkin, Elizabeth Cade, and John Marlow, that James Sommersett, a negro, was confined in irons, *on board a ship called the [658 Ann and Mary, John Knowles, commander, lying in the Thames, and bound for Jamaica; and Lord