The national era. [volume] (Washington [D.C.]) 1847-1860, 1857-04-02
nay be COMPOUNDED. but should be kept dis.

may be COMPOUNDED, but should be kept dis
tinct. t-
The first is, what was the law of the territory
| into which the master and slave went, respect
ing the relation between them?
The second is, whether the State of Missouri
recognises and allows the effect of that law on
the status of the slave, on his return within its
jurisdiction. ~
/ As to the first of these questions, the will OF
States and nations, by whose municipal Law
Slavery is not recognised, has been manifested
| in three different ways.
| One is, absolutely to dissolve the relation,
and terminate the rights of the master existing
under the law of the country whence the parties
came. This is said by Lord Stowell, in the
case of the slave Grace e Hag. Ad. R., 94)
and by the Supreme Court of Louisiana in the
case of Maria Louise Us. Marat Is Louisiana
r., ABB to be the law of France; and it has
been the law of several States of this Union, in
respect to slaves introduced under certain con-
ditions. Wilson Us. Isabel, Calls R., 430
Hunter cs. Hulcher, Leigh, III; Stewart Us.
Oaks, Har. and john, 1917
The second is, where, the municipal law of q
country not recognising Slavery, it is the will
OF the State to refuse the master all aid to ex-
ercise any control over his slave; and if he at
tempt to do so, in a manner justifabe only by
| that relation, to prevent the exercise of that
control. But no law exists designed to operate
directly on the relation of master and slave,
| and put an end to that relation. This is said
| by Lord Stowell, in the case above mentioned,
| to be the law of England, and by Mr.. Chief
| Justice Shaw, in the case of the Commonwealth
rs. AYES, Is Pick, 1887 to be the law of Massa-
| chusetts.
The third is, to make a distinction between
| the case of a master and his slave only tenn
| porarily in the country, amino mon, mdneaadi,
and those who are there to reside for permanent
| or indefinite purposes. This is said by Mr..
| Wheaton to be The law of Prussia, and was
| formerly the statute law of several States of
| our Union. 1t is necessary in this case to keep
in view this distinction between those countries
whose laws are designed to act directly on the
status of slave, and make him freeman, and
those where his master can obtain no aid from
the laws to enforce his rights. b
1t is to the last case only that the authorities,
out of Missouri, relied on by the defendant, ap-
ply, when the residence in the nonslaveholding
Territory was permanent, In the Common
wealth Us. AYES, Is Pick, 2l8, Mr.. Chief JUS.
tiee Shaw said: "From the principle above
stated, on which slave brought here becomes
free, Ito wit, that he becomes entitled to the
protection of our laws,) it would seem to follow,
as necessary conclusion, that if the slave
valves the protection of those laws, and returns
to the State where he is held as slave, his
condition is not changed" 1t was upon this
ground, as is apparent from his whole reason.
ing that Sir William Scott rests his opinion in
the case of the slave Grace. To use one of his
expressions, the effect Of the law of England
was, to put the liberty of the slave into q
parenthesis. If there had been an act of Par
Lament declaring that a slave coming to Eng
land to reside with his master should thereby
be deemed no longer to be a slave, it is easy to
see thatthat learned Judge could moths arrived
at the same conclusion. This distintion is very
clearly stated and shown by President Tucker,
in his opinion in the case of Betty Us. Horton,
5 Leigh's (Virginia) R., els. (See also Hunter
as. Fletcher, l Leighs Va. R., IT,: Maria
Louise Us. Marot, 9 Louisiana R. Smith rs.
Smith. l3 ib., 44l Thomas us. Genevieve, l6
ID, 49, Rankin Us. Lydia, A. K. Marshall,
467; Davies rs. Jingle, B. Munroe, $50
Griffith Us. Fanny, Gilm. Va. Rep, LAB Lum-
ford as. Coquillon, IA Martins La. Rep, 405;
Josephine as. Poultney, l Louis. Ann. Rep,
1921
| But if the acts of Congress on this subject
are valid, the law of the Territory of Wisconsin,
within whose limits the residence of the plain
tiff and his wife, and their marriage, and the
birth of one or both of their children, took place,
falls under the first category, and is law
operating directly on the status of the slave. By
the eighth section of the act of March 6, 1920,
| Is Stat. at Large, 548,) it was enacted that,
within this Territory, Slavery and involuntary
lNervitude, otherwise than in the punishment of
crimes, whereof the parties shall have been
duly convicted, shall be, and is hereby, forever
| prohibited. hOcided, al,c0ys, that any person
| escaping into the same, from whom labor or
service is lawfully claimed in any State or Ter
| ritory of the United States, such fugitive may
be lawfully reclaimed, and conveyed to the per-
| son claiming his or her labor or service as
| aforesaid
By the act of April 20, 1886, "a Stat. at
| Large, l0,) passed in the same month and year
of the removal of the plaintiff to Fort Smelling,
this part of the territory ceded by France,
where Fort Smelling is, together with 80 much
of the territory of the United States east of the
Mississippi as now constitutes the State of Wis.
consin, was erected into Territorial Govern
ment, under the name of the Territory of Wis.
consin. By the 18th section of this act it was
enacted, "that the inhabitants of this Territory
shall be entitled to and enjoy all and singular
the rights, privileges, and advantages, granted
and secured to the people of the territory of
| the United States northwest of the river Ohio,
by the articles of compact contained in the Or.
| dinance for the government of the said terri.
tory, passed on the 18th day of July, 1877
and shall be subject to all the restrictions and
prohibitions in said articles of compact imposed
upon the people Of the said territory. The
sixth article of that compact u.s. there shall be
neither Slavery nor involuntary servtude in
the said territory, otherwise than in the punish.
ment of crimes, whereof the party shall have
been duly convicted provided, always that any
| ,ptn tha froy uhoo
labor or service is lawfully claimed in any one
of the original States such fugitive may be
lawfully reclaimed and conveyed to the person
claiming his or her labor or service as afore
said" By other provisions of this act establish
ing the Territory of Wisconsin, the laws of the
United States, and the then existing laws oil
the State of Michigan, are extended over the
Territory; the latter being subject to alteration
and repeal by the legislative power of the Terri
tory created by the act.
Fort Smelling was within the Territory OF
Wisconsin, and these laws were extended over
it. The Indian title to that site for military
post had been acquired from the Sioux Nation
, as early as September %, 1905, Am State Pa
pers, Indian Affairs, vol. l, p. 744 } and until
the erection of the Territorial Government, the
J persons at that post were governed by the
: rules and articles of war, and such rules Of the
, United States, including the eighth section o
\ the act of March 6, 1920, prohibiting Slavery
as were applicable to their condition; but afte
5 the erection of the Territory and the extension
of the laws of the United States and the law
of Michigan over the whole of the Territory
, including this military post, the persons resi-
$ ding there were under the dominion of thos
8 laws in all particulars to which the rules an,
D articles of war did not apply.
1t thus appears that, by these acts of Con
1Nt L. g
J. cipal law borrowed from the State of Mich
e gan, which did not tolerate Slavery. but it wa