The national era. [volume] (Washington [D.C.]) 1847-1860, 1852-11-25

I TO another State, becomes free under the Con-
sttution, then the defendant in error is not
guilty of concealng such a person rs is de-
scrbed in the law and in the indictment Inc
1i9th section of the criminal code, tor a VIOLA
ton of which the plaintiff is indicted, does
most distinctly recognise the existence OF the
institution of slavery in some OF these United
States and whether the Constitution and Laws
of this State have or have not provided ado
! quate remedies to enforce within It's Jurlsdlc-
! ton that obligation Of service 1t has provided
by this penal sanction that none shall harDor
or conceal slave within this State, who owes
such service out of it, Every State or Govern
ment may or may not. as 1t chooses recognise
and enforce this law Of comfy. And to this
extent this State has expressly done So II we
should, therefore, regard ourselves as distinct
and separate nation from our sister States, still,
a. by the law of nations. (Nattel, b. 2 Oh. 10,
:. 1872, 1873, l3i.) the citizens OF one Govern
ment have right of passage through the ter
ritory of another peaceably, for business or
pleasure, and that, too, without the latters ac-
curing any right over the person or property,
Nattel, b ,, 8. 107 1922 we could not deny
them this international right without VIOLA
ton of our duty. Much less could we disre-
gard their constitutional right, as citizens Of
one of the States, to all the rights, immunltes
and privileges of citizens OF the several States.
1t would be startling, indeed, if we should de-
ny our neighbors and kindred that common
right of free and safe passage which foreign
nations would hardly dare deny. The recog-
milton of this right is no violation of our Consti-
tuition. 10 is not an introduction OF slavery IN
10 this State, "a WA contended iii argument,
and the slave does not become free by the Con-
stitution of illinois by coming into the State
for the mere purpose of passage through it,"
Another case cited by the respondents cOun-
sci was the Commonwealth vs. AYES rs Pick
ering's Rep, 1881 In this case, the owner
brought her slave with her from New Orleans
to Boston, on d visit TO her father, with whom
she intended to spend five or six months, and
then return with her slave to New Orleans.
The slave being brought up on habeas corpus
the court ordered her discharge. The case
was fully argued and Chief Justice Shaw closes
very elaborate opinion with these words ::
Nor do we give any opinion upon the case,
where an owner of a slave in one State is bona
fde removing to another State where slavery is
allowed, and in so doing necessarily passes
through free State, or where by accident or
necessity he is compelled to touch or land
therein, remaining no longer than necessary"
have quoted largely from the opinions in
these cases, in order that it may be understood
clearly what is presented by Them as their gov
ernng principle. The respondents counsel in
ssts it il this: that by tho law of nations an
owner of slave may, either from necessity or in
the absence of all intention to remain, pas. with
such slave through State where slavery is
not legalzed, on his way from one slave State
to another and that during such transit through
the free State the slave cannot assert his free
dom
| admit that this is the principle of these
cases, and now propose to consider it, Each
case denies that the right of transit can be de-
rived from the provision of the Constitution of
the United States respecting fugitive slaves
and, where an opinion was expressed, places
the right upon the law of nations
Writers of the highest authority on the law
of nations agree that strangers have right to
pass with their property through the territories
of IA nation. (Vattel, B. 2, oh. 9, IS 1913 to 1856
Puendort, b 3, CHI. 3, So. 5 to 1O) And this
right which exists by nature between States
wholly foreign to each other undoubtedly ex-
lists, at least as a natural right, between the
States which compose our Union.
But we are to look further than this, and to
see what the law of nations is, when the prop
erty which a stranger wishes to take with him
is a slave
The property which the writers on the law
of nations speak of, is merchandise or inani-
mate things. And by the law Of nature these
belong to their owner. But those writers no
where speak of a right to pass through for
oign country with slaves rs property. On the
contrary, they all agree that by the law of ma
ture alone no ono can have property in slaves
And they also hold that even where slavery is
established by the local law, a man cannot
have that full and absolute property in a per
son which he may have in an inanimate thing.
| (Pufendorf, b. s. Oh. 3, sly 1t can scarcely.
therefore, be said that when writer's on the law
of nations maintain that strangers have a right
to pass through II country with their merchan-
disc or property, they thereby maintain their
right to pass with their slaves.
But the property or merchandise spoken Of
1 10y writers on the law Of nations which the
stranger may take with him, being mere IMAM
innate things can have no rights; and the rights
of the owner are all that can be thought Of 1t
is, therefore necessary to look still further, and
to SEQ what is the state d things by the law of
nature as affecting the rights of the slave when
an owner finds himself from necessity with his
slave, in country where slavery is not legal
zcd, or is not upheld by law.
1t is generally supposed that freedom Of the
soil from slavery is the boast of the common
law of England, and that a great truth was
! brought 10 light in SOmmersetts case. This is
not 80 Lord Mansfield was by no means, so
| far AZ the rest of the world is concerned. the
pioneer of freedom Whatever honor there
may be in having first asserted that slavery
cannot exist by the law Of nature but only by
force of local law, that honor, among modern
nations belongs to France, and among systems
! OF Jurisprudence to the civil law. The case of
Sommersett did not occur until the year I772
and In 1873 II case arose in France, in which
| 1T was held that u negro slave became free by
being brought into France u3 Causes Cele-
! bros 4g)
But in truth, the discovery that by nature
all men are free, belongs neither TO England
nor France but IL as old AZ ancient Rome: and
the law of Rome repeatedly asserts that all
men by nature are free, and that slavery can
subslst only by the laws of the State (Digests,
B. l. T. L. =. 4, h. /, +. 5, 81. 4, S.
The writer's on the law of nations uniformly
maintain the same principle, viz that by the
law OF nature all men are free, and that where
slavery is not established and upheld by the
| law OF the State there can be no slaves Gro
thus, Is. ?, CHI. %, g. II Hobbies De Give, B. /.
CHI. /, $. 3. Puiendorf (Barbeyrac) Droit de la
Nature b. 3, CHI 2 IS. /, 2; b. 8, Oh. 3, s. 2
The same writer's also hold that by the law
Of Nature one race of men is no more subject
TO be reduced to slavery than another race
| (Pufendorf b. 3, CHI q 8. 81
When We are considering master and slave
in free State, where slavery is not upheld by
law, we must take into view all these principles
of the law of nature, and see how they are re-
spectively to be dealt with, according to that
law for it will be remembered that the master
can now claim nothing, except by virtue of the
law of nature. He claims, under that law,
right to pass through the country. That is
| awarded 10 him. But he claims in nddition