Weekly national intelligencer., 1857-06-27

their marriage and the birth Of boh of their chill
dren took place. falls under the first category and is
law operating directly the status Of the slave. By
She eighth section of the act of March 8, 1920 3 Stat
at Large, 548 it enacted that, within this Ter
ritory-
Slavery and involuntary servitudc otherwise than in the
punishment whereof the parties shall have been
duly convicted shall be and is hereby for prohibited
from whom labor service is lawfully claimed in any State
Territory of the United States such fugitive be law
fully reclaimed and conveyed to the person claiming his
her labor service, as aforesaid"
By the act of April 90 1886, "a Stat at Large 10)
passed in the month and year of the removal OF
the plaintiff Fort Smelling, this part of the territory
ceded by France where Fort Smelling is together with
much of the territory of the United States east of the
Mississippi as constitutes the State of Wisconsin,
was brought under Territorial government, under the
of the Territory of Wisconsin By the eighteenth
section of this act it was enacted:
That the inhabitants Territory shall be entitled
and enjoy all and singular the rights privileges and advan
granted and secured the people Of the Territory of
the United States northwest 0ho by the articles
compact contained for the of
said Territory passed the 18th day of july 1857 and shall
be subject to all the restrictions and prohibitions In sand
ces of imposed the people of the said Ter
rtory."
The sixth article of that compact is
"There shall be neither slavery involuntary erytude
in the said Territory otherwise than in the punishment of
crimes whereof party shall have been duly convted
Provided aldg That escaping into the same,
from whom labor or service lawfully claimed any of
aud conveyed to the claiming his or her labor or ser
vice. aforesaid"
By other provisions of this act establishing the Terri
tory of Wisconsin, the laws of the United States and the
then existing laws of the State of Michigan extend
ed the Territory the latter being subject to aera-
on and repeal by the legislative power of the Territory
created by the act
Fort Smelling was within the Territory Of Wisconsin,
and these laws extended it. The Indian title
to that site for military post had been acquired from
the Sioux nation early September %, 1906 Am
Csox~ D. II a. and r,rftl
the erection of the Territorial the persons
that post governed by the rules and articles of
war; and such laws of the United States including the
eighth section of the act of March 6, 1920 prohibiting
slavery applicable their condition; but after
the erection of the Territory, and the extension of the
laws of the United States and the laws of Michigan
the whole of the Territory including this military post
the persons residing there under the dominion Of
those laws in all particulars which the rules and art
ees of war did not apply.
1t thus appears that by these acts Of Congress- not
only general system of municipal law borrowed
from the State of Michigan which did not tolerate sla
very, but it positively enacted that slavery and in
voluntary servitude with only exception specifically
described should exist there. 1t is not simply that
slavery is recognised and be aided by the mu
nicipa law 1t is recognised for the purpose of being
absolutely prohibited and declared incapable of existing
within the Territory, in the instance of fugitive
slave.
1t would not be easy for the Legislature to employ
explicit language to signify its will that the status
of slavery should exist within the Territory than the
words found in the of 1920 and in the ordinance of
1887; and if any doubt could exist concerning their ap
pcaton to of masters coming into the Territory
with their slaves to reside that doubt must yield to the
inference required by the words of exception That
ception is of of fugitive slaves An exception from
prohibition marks the extent of the prohibition for it
would be absurd, well as useless, to except from
prohibition not contained within it. % Wheat,
200 must conclude therefore that it was the will of
Congress that the state of involuntary servitude of
slave coming into the Territory with his master should
cease to exist The Supreme Court of Missouri SO held
in Rachel Walker. a Misso. R., 350) whicl the
case of military officer going into the Territory with
two slaves.
But it is distinct question, whether the law of Mis-
souri, recognised and allowed effect the change wrought
in the of the plaintiff by force of the laws of the
Territory of Wisconsin.
say the law of Missouri because judicial tribunal in
State nation recognise personal rights acqur
ed by force of the law of any other State nation only
far is the law of the former State that those rights
shonld he recognised But in the absence of positive
law to the contrary the will of every civilized State must
be presumed to be allow such effect foreign laws
in accordance with the settled rules of international law
And legal tribunals are bound to act this presump
on 1t may be assumed that the motive of the State in
allowing such operation to foreign laws is what has been
termed comfy. But, has justly been said, (per Chief
Justice Taney 13 Pet, $685. it is the comfy of the
State, of the The judges have nothing to d.
with the motive of the State Their duty is simply to
certain and give effect its will And when is found
by them that its will to depart from rule of nernaon-
al law has not been manifested by the State they
bound to that its will is to give effect to it, Un
doubted every sovereign State may refuse recognise
change wrought by the law of foreign State the
status of person. while within such foreign State
where the rules of international law require that
recognition Its will to refuse such recognition may be
manifested by what term statute law, by the
omary law of the State 1t is within the province of its
judicial tribunals to inquire and adudge whether it ap-
pears from the statute customary law of the State to
be the will of the State to refuse to recognise such
changes of status by force Of foreign law the rules of
the law of nations require to be recognised But in my
opinion it not within the province of any judicial tri
buna to refuse such recognition from any political
sderations, any view it may take of the exterior poll
cal relations between the State and foreign
States any impressions may have that change of
foreign opinion and action the subject of slavery may
afford why the State should change its
ton To understand and give just effect such consid
eraons and to change the action Of the State in
quence of hem functions of dplomatists and legs
lators, not of judges.
The inquiry to be made this part of the is,
therefore, whether the State of Missouri has, by its
tute or its customary law manifested its will to dspace
any rule of international law applicable to change of
the status of slave by foreign law.
have not heard it suggested that there any sta
tute of the State of Missouri bearing this question
The customary law of Missouri is the law, intro
duced by statute in 1816.-1st Ter. Laws, 436) And
the common law, as Blackstone says CA Com, 81 adopts
in its full extent the Law of nations, and holds it to be
part of the law of the land.
know of sufficient warrant for declaring that any
rule of international Law concerning the recognition in
that State of change of status, wrought by an extra
territorial Law, has been displaced varied by the will
Of the State Of Missouri.
proceed them to inquire what the rsles Of inter-
Of the plaintiff wrought by the law of the Territory of
Wisconsin. ksr
1t is generally agreed by writers upon international
law, and the rule has been udicaly applied in great