Willard v. People, 5 Ill. 461, 4 Scam. 461 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 461, 4 Scam. 461

Julius A. Willard v. The People of the State of Illinois.

Error to Morgan. .

1. Slavery — harboring slave. It is an offence punishable by indictment, under the statute of Illinois, to unlawfully harbor or secrete a slave owing service to a resident of another state, while such resident is passing with the slave through this state.

2, Same — same. §149 of the criminal code provides that "If any person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing service or labor tj any other persons, whether they reside in this state or in any other state or territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every such person so offending, shall be deemed guilty of a misdemeanor, and fined not exceeding $500, or imprisoned not exceeding six months.” The latter clause of this section falls within the principles of the decision in the case of Prigg v. Pennsylvania, 16 Peters 539, where it is decided that the power to legislate on the subject of fugitive slaves, as provided in the third clause of § 2, of article IV. of the constitution of the United States, belongs exclusively to congress ; and that no state can pass any law either amendatory or ancillary to the legislation of congress upon this subject; that any state legislation ini encLd to aid the master or punish individuals, in addition to penalty imposed by the acts of congress for hindering the owner from recovering his slave, is ancillary 10 the acts of congress, and therefore unconstitutional and void. But the first clause of said section does not ; it is amere police regulation for the preservation of order, and though it may incidentally afford protection to the rights of slaveholders, it is so indispensable to our well being, and the good order of our own officers that it cannot be doubted that it is neither ancillary to the acts of congress 462] nor in violation of the constitution of the United States, nor repugnant to our own constitution, or to the ordinance of 1787.

3. Presumption — of personal freedom. All persons in this state are deemed tobe free.

4. Constitutional Law — recognition, of slavery. § 49 of the criminal code most distinctly recognizes the institution of slavery in some of these United States, and has provided, by penal enactment, that none shall harbor or conceal a slave, within the state, who owes service out of it; and to this extent this state has expressly recognized and enforced the law of comity, which every state or government may or may not do, as it chooses.

5. Law of Nations — right of transit. By the law of nations the citizens of one government have the right of passage through the territory of another, peaceably, for business or pleasure, and that too, without the latter acquiring any right over their persons or property. This international right the courts of Illinois could not deny to citizens of other states, without a violation of duty. Much less can they disregard the constitutional rights of a citizen of one of the states, to all the rights, immunities and privileges of citizens of the several states.

6. Same — passage of slave. A slave does not, by the constitution of Illinois become free by coming into the state for the mere purpose of passage through it, and such coming into the state is not an introduction of slavery therein. ^(a)

The plaintiff in error was indicted at the March term, 1843, of the Morgan circuit court, the Hon. Samuel D. Loockwogd presiding, for secreting a woman of color owing service to a resident of Louisiana. Judgment was rendered against the defendant upon demurrer to the indictment, and he was sentenced to pay a fine of $20 and costs. To reverse this judgment he prosecuted a writ of error to this court.

J. H. ColliNS (with whom was A. Cowles, Wm. Brown, and H. B. McClure), for the plaintiff in error:

1. If the master bring his slave into a state where slavery does not exist, such slave becomes free.

Slavery is an artificial condition, created against natural right and justice; and cannot exist except by positive law. The law declaring this condition is opposed to the divine law. Those precepts of the Savior which command all men to love their neighbor as themselves, and to do to others as they would have others to do to them, strike at the root of slavery. The true practical result of obedience to these commands would be the immediate emancipation of every slave on earth; for slavery cannot exist an instant where these precepts are observed in their spirit and meaning.

“That slavery is contrary to nature will scarcely be denied. That every man has a natural right to the fruits of his ov n labor is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of the admission.” Commonwealth v. Aves, 18 Pick. 193; Antelope, 10 Wheat. 120.

“Slavery is a relation founded in force, not in right, existing, where it does exist, by force of positive law, and not recognized as founded in natural right.” 18 Pick. 193.

“Slavery is condemned by reason and the law of nature. It exists, and can only exist, through municipal regulations.” Harvey v. Decker, Walker’s Miss. 36. _ [*463]

The courts in the slaveholding as well as the free states, and also in England and France, hold the same language, that-slavery is contrary to the law of nature, and cannot exist except by positive law. ' 14 Martin 404, Sommersettes’ case, 20 Howell’s State Trials 1; Forbes v. Cochrane, 2 Barn. & Cres. 448.

Slavery is local and cannot exist beyond the jurisdiction creating it. When, therefore, a slave is brought by his master out of such jurisdiction, into another where slavery does not exist, or is not tolerated, he resumes all his natural rights, and becomes a freeman.

In Forbes v. Cochrane, Holroyd, J., declares: “ The law of slavery is a law in invitum, and where a party gets out of the territory where it prevails, and under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, being founded on the municipal law of the place only, does not continue.” “ He ceases to be a slave only because there is no law which sanctions his detention in slavery.” Story’s Conflict of Laws § 96 ; 8 Louis. 475 ; 14 Martin 401; 18 Pick. 193 ; 3 Metcalf 72:

The third section of the 4th article of the constitution of the United States, and the act of congress of 1793, respecting fugitives from labor, do not apply to the case of a slave voluntarily carried by the master into a free state. This was so decided in Butler v. Hopper, 1 Wash. C. C. B. 499.

Slavery is prohibited in this state, except as to those bound to service under the laws of the .territory, passed in violation of the ordinance of 1787, the 6th article of which declared, that there should be neither slavery nor involuntary servitude in said terri-. tory, otherwise than in the punishment of crimes, etc.

The first section of the 6th article of the constitution of this state declares, that “Neither slavery nor involuntary servitude shall hereafter be introduced into this state, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.”

The first section o£ the 8th article declares, “ That all men are born equally free and independent, and have certain inherent and indefeasible rights; among which are those of enjoying and defending life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.”

These and other provisions show most clearly that slavery was intended to be, and is, prohibited, except in the cases above referred to. No language can be more forcible or comprehensive. There can, therefore, be no law of the state sanctioning the detention of any one in slavery; for the supreme law forbids ' it. Slavery, then, is repugnant to the constitution of the [* 464 ] state, and contrary to our public policy.

The doctrine of the comity of states or nations has nothing to do with the case. That doctrine is this: “ That in the absence of any positive rule affirming, or denying, or restraining the operation of foreign laws, courts of justice will presume the tacit adoption of them, by their own government, unless repugnant to its policy, or prejudicial to its interest.” Story’s Conflict of Laws § 88 ; 18 Peters 587.

It is well established that the courts of one nation will not re-cognise or execute the laws of another, “ where those laws are deemed oppressive,” or “ where their moral character is questionable, or their provisions impolitic.” Story’s Conflict of Laws § 33.

The constitution, by prohibiting slavery, restrains the operation of slave laws of other states in this. This court cannot ex comitate, introduce and execute the slave laws of other states, and thus annul the constitution, or engraft upon it principles subversive of right and justice, offensive to the moral sense, and which the people, in their sovereign capacity, repudiated and. rejected, at the formation of their government.

The rule of comity which permits the citizens of one friendly nation to pass through the territory of another, for business or pleasure, and take their property with them, without molestation, does not apply to the case of slave property.

The property which, by the comity of nations, will be protected and secured to the owner, while passing through a friendly territory, is that species only which,by all civilized nations, is universally treated and recognised as property. The principle upon which the general right of property depends is founded in nature. This right of property is a natural right, and does not owe its origin or existence to municipal law. Property in slaves owes its origin ■and existence solely to local law, and has no foundation in nature. Hence, by the comity of nations, slaves are not universally treated and recognised as property.

The relation of husband and wife, parent and child, is also founded in nature, and does not derive its existence from municipal law. Law may regulate the relation, but does not create it; hence these relations are, by the comity of nations, everywhere recognized and respected. Not so with the relation of master and slave, which is unnatural and artificial, and cannot exist beyond the jurisdiction creating it. Story’s Conflict of Laws, §104.

Personal disqualifications, not arising from the law of nations, but from the principles of customary or positive law of a foreign country, and especially such as are of a personal nature, are not generally recognised in other countries where the like disqualifications do not exist. Hence the disqualifications resulting from heresy, excommunication, popish recusancy, infamy, and other penal disabilities, are not enforced in any other country, except that in which they originated. They are strictly [*465] territorial. So the state of slavery will not be recognized in any country whose institutions and policy prohibit slavery.” ,

ÍI. § 149 of the criminal code, under which this indictment is found is unconstitutional. It conflicts not only with the 1st section of the 6th article, but also with the 1st section of the 8th article of the state constitution.

By the 8th article it is unalterably established, that all men are ■ born equally free, and have inherent, indefeasable rights to enjoy and defend life and liberty, and to pursue happiness. The 149th section does not, it is true, expressly declare that the person brought by his master, from slavery, into this state, shall not be equally free and independent, and enjoy life, liberty, and pursue bis own happiness, with other persons; but it undertakes (if it applies at all to such class) to deprive him, without crime, of that protection from others which may be necessary to the preservation and enjoyment of those rights. It attempts to deprive him of the rights of humanity; to cut him off from those claims which every one has upon the kindness and sympathy of his race. It forbids the rights of hospitality, and seeks to separate him from his fellow men, and to compel him to yield up his inalienable right to liberty, and return again to slavery, or perish in cold and hunger.

All this is accomplished, not by directly declaring that all constitutional rights shall be denied him; that he shall not have and enjoy liberty and pursue happiness; but by prohibiting others from the performance of those duties and offices toward him, without which his rights cannot be preserved or enjoyed. What would be thought of the constitutionality of a law that should declare that no punishment should be inflicted upon those who should deprive a certain class of their lives, liberty, or property ? Would not such a law as directly conflict with the constitution as if it had declared that that class should not have the right of life, liberty, and happiness, or as if it had declared that a certain class should be slaves.

The 149th section also conflicts with the constitution of the United States, and the act of congress of 1793. Prigg-v. Pennsylvania, 16 Peters 539; Jack v. Martin, 12 Wend. 311.

J. A. McDougall, attorney general, for the defendants in error:

The only question arising upon the record in this cause, is, whether or not the transit of a master with his slave, through this state, emancipates the slave.

On the part of the appellant, it is contended that the condition of slavery is entirely repugnant to our constitution and laws, and that whenever a slave comes, or is brought within the limits of the state, with the consent of his owner, the state [* 466] constitution operates upon his condition, and he is from that moment free. The appellees insist:

First. That the constitutional provision in question was only designed to prevent the state legislature from thereafter establishing the institution of slavery; that it does not inhibit the state legislature from securing to the slave owner a safe transit with his slave. Art. 6, § 1, R. L. 43, provides that “neither slavery nor involuntary servitude shall be hereafter introduced into this state.” The third section of the same article recognises the institution as existing to a limited extent, and the second section provides the contingency upon the happening of which the slave brought from abroad shall be free; that is, if he be “ hired to labor in this state.”

Second. That the right of transit is virtually secured by the law authorizing the slave to be restrained of his liberty. R. L. 464. The want of such a law in England, governed the decision of the English courts in the case of Forbes v. Cochrane, 9 Eng. Com. Law R. 145, and with a similar law it is evident that the supreme court of Massachusetts would have holden differently, in The' Commonwealth v. Aves.

Third. Slaves are recognised as property by the federal constituí ion, which, in this, has the effect of treaty stipulation. Art. 1, § 2, clause 3, recognises the institution for purposes of representation, and article 6, § 3, recognises property in slaves, and makes partial provisions for the enforcement of the right.

Fourth. Slaves being recognised as property by compact between the states, those rules of the jus gentium, which govern property, attach to them as between the several states and their citizens; and consequently the right of the master must be gov-ernecl by the law of bis domicile. Story’s Conflict c.f Laws 311, § .379-80 ; Yattel 174.

Fifth. By the law of nations, the condition of a person is governed by the law of his domicil. If free at his place of domicil, he is free everywhere. If subject to service at his place of domi-cil, he is subject to the same service everywhere, although he changes his domicil, and makes himself subject to the laws of another jurisdiction, in which case, if his condition be not consistent with the law of his hew domicil, it ceases to attach. Story’s Conflict of Laws 50, et seq.

Sixth. The last two propositions are not, as supposed, inconsistent with adjudicated cases. In Forbes v. Cochrane, 9 Eng. Com. Law R. 145, it is said: “ The reason why ,a foreign slave is free in England, is because there is no law to restrain him.” If the slave should return, the condition would again attach. Lord Stowell held the same rule, in the case of the slave Grace, 2 Haggard 94; and it is recognised and so laid down by the. Supreme court of Massachusetts, in The Commonwealth v. Aves, 18 Pick. 214, 218. These cases all concede that [*467] the condition of the slave is not changed; the right of the owner is not diverted ; as no rule is better settled than “once free always free.” The right of the owner is admitted to exist, but is suspended for want of a remedy. In this state the remedy is given by law. R. L. 464.' It is undoubtedly competent for any government to prohibit slaves from being brought within its 'territories, and in case they are introduced in violation of law, to declare them free. Upon the same principle, they may prohibit the introduction of any species of merchandise, and if it be introduced, declare a forfeiture. These are exceptions to the general rule; and it is the duty of states, passing such laws, to give such public notice that the citizens of other nations may act advisedly. If, then, they violate the law, it is at their peril. It was by virtue of a positive law of France, of this character, that the slave was declared free, in the case of Marie Louise v. Mariot, 8 Louisiana 475. She was take,n by her master to France. The law of France declared her free ; and having been once free, the condition of freedom continued; and she was held free in Louisiana. Upon the same principle, if the owner had taken prohibited merchandise, instead of his slave, to France, and the merchandise had been confiscated, and subsequently shipped by the purchaser to New Orleans, the right of the former owner could not re-attach.

The rule contended for has been held in every case where the question has been fairly raised. The leading case in the .United States, is Rankin v. Lydia, 2 A. K. Marsh. 477, in which it is expressly held, that slaves attending their masters, sojourning in, or traveling through Ohio, are not thereby emancipated: In Lansford v. Coquillon', 14 Martin 401, the owner, with his slaves, domiciled in Ohio. The argument was that by the law of the. domicil the relation was dissolved ; and the court held that the owner moving to Ohio, with the intention of residing there, and taking with him his slaves, subjected himself to the laws of that state, and that the slaves became free. The same doctrine was recognised in Indiana, by justice Morris. 3 Am. Jurist 406. A slave was brought before him on habeas corpus. He he d that the owner, with his.slave, had a right to pass'through that state on business or pleasure. All of these cases recognise the rights of the owner and the slave, as they attach by the laws of their domicil; and that their relations are not changed until they acquire a new domicil, and are operated upon by different and averse laws.

Seventh. The right of transit is one that we are bound to'grant upon the general principles of international comity.

In the case of The Commonwealth of Massachusetts v. Aves, the argument of learned counsel in favor of freedom, ex-[*468] pressly admits the right of transit, and the court declined deciding the question. 18 Mass. 224.

In the case of the Antelope, 10 Wheat. 66, it was held that slaves taken upon the American coast, within the waters of the Union, are not thereby emancipated ; and in Julia v. McKinney, 3 Missouri 272-3, the- right of passage or transit, with slaves, through the free states of the Union, is expressly recognised. Vattel says an innocent passage is due to all nations with-whom ' we are at peace. Vattel 179, 340. “The right of passage is a remnant of the primitive state, and no one can be entirely deprived of it.” Vattel 183. The right of passage includes the right to transport merchandise; and the same author, upon page 344, lays down the rule that belligerents have the right to pass over neutral territory, and, in passing, to carry with 'them their captives and.booty. It seems to me a strange position, that the common obligations that exist between distinct nations, do not exist as between the states of this confederacy. Suppose it possible that the Russian autocrat should make war upon a state beyond our western borders, and should gather much spoil and make, many prisoners, and his ships lay in our eastern ports,-it would be his right, with pi-isoners and spoil, to pass undisturbed through our territories. Yet it is contended that a citizen of one of our own sister states may not. pass, with the property he has purchased, and which by the law of his own home he has the-right to hold, without- being despoiled, as we would not dare despoil the army of a foreign despot.

International comity is not the -creature of legislation. It grows out of general rules which are observed to advance the general interests and convenience of nations ; and in this state, as well as the other states of the Union, it is the province of the courts of judicature to determine how far they will recognise the laws of other states, and the rights of citizens of other states, within our own territory. In making such determination, it is their duty to adopt a large and enlightened policy, which will forward and advance a friendly and' mutual intercourse between our own state and all the sister states .of the confederacy; and our position upon the two great western rivers, connecting our business with the states of the south, and our intermediate location between the states of Kentucky and Missouri, furnish special reasons why they should recognise and respect the rights .of the slave owner, so long as those rights do not interfere with our own cherished institutions.

(a) See the thirteenth amendment to the Constitution of the United States. R. S. 1874 p., 17 ; S. & C's. Stats, p. 38.

Scates, Justice,

delivered the opinion of the court: The indictment charged that Willard unlawfully did secrete one Julia, by name, being a mulatto girl, and person of color, and who was a slave owing service, as such, to Sarah W. Liles, in the state of Kentucky, under and by virtue of the laws of said state, and in the state of Louisiana in and by virtue of the the laws thereof, in which latter state Sarah W. Liles re- [* 469] sides; and that said slave escaped from the possession and ' custody of said Sarah, the owner, without her knowledge or consent, while in the state of Illinois, and passing from the state of Kentucky to the state of Louisiana, through the state of Illinois; all of which facts were then and there known to said Willard.

To this indictment Willard demurred ; the demurrer was overruled | and he abiding by his demurrer, the court imposed a fine upon him. This is assigned for error.

The 149th section of the criminal code provides that, “ If any person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing service or labor to any other person, whether they reside in this state or in- any other state, or territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every such person so offending shall be deemed guilty of a misdemeanor and fined not exceeding five hundred dollars, or imprisonment not exceeding six months.”

It is contended that this section is in violation of the 3d clause of the second section of the 4th article of the constitution of the United States, which provides that “ No person held to service or labor in one state, under the laws 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 duethat it violates the act of congress which was passed to carry into effect this provision of the constitution; that it violates the 1st section of the 6th article of the constitution of the state of Illinois, the 1st section of the 8th article, and the ordinance of 1787.

To maintain these propositions, a wide range of argument was gone into, and much discussion had upon the institution and nature of slavery, and the interpretations, and rules of interpretation of the constitutions of the general and state governments by the courts of the United States, and the separate states.

Many of the authorities cited and read on the argument shed much light upon the science of the law, but have no application to the questions presented in this case.

The rules of interpretation, and the construction of the constitution of the United States, on most points that have been adjudicated, have been so firmly settled, and are so well known, that it needs not to state them or cite the reports for vouchers, as they have become axioms in the service of constitutional law, and the common property of the profession.

The late case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters 539, has shed much light upon the above clause [*470] of the constitution; in which it is held that the power to legislate on the subject of fugitive slaves, as provided in that clause, belongs exclusively to congress, and that no state can pass any law either amendatory or ancillary to the legislation of congress; that any state legislation intended to aid the master, or punish individuals, in addition to the penalty imposed by the act of congress, for hindering the owner from recovering his slave, etc., is ancillary to the act of congress, and therefore unconstitutional and void.

This then settles the question, as to state legislation upon that subject, and for those objects. The argument of the court has proceeded to the very verge of jurisdictional boundaries between the national and state governments; but the court expressly admits that the states have jurisdiction to provide police regulations, for the preservation of order, the administration of its own affairs, and internal intercourse.

And here we approach a most delicate question of jurisdiction between the two governments. If no regulation by a state is constitutional, which may incidentally afford protection to the rights of slaveholders, no matter how essential it may be to preserve quiet and order in our community; to protect us from vagabond, or pauper slaves; to punish or prevent them from entering our territory, if we think proper; to forbid it, or punish those who may encourage them to come, or harbor or secrete them, while here, we are then, indeed, exposed irremediably, for hundreds of miles of contiguous boundary with Missouri and Kentucky, to heartburnings, criminations, and recriminations, quarrels, brawls, excitements, affrays, and breaches of the peace, arising from the influx of that unwelcome population, and the • disturbances to which it may and does give rise. The power is so indispensable to our well being, and the good ordering of our own affairs, that I cannot doubt the power of the legislature to regulate it. The latter clause of the section does most clearly fall within the principles of that decision; but the clause of the section under which the plaintiff is charged, neither gives the owner damages, nor apprehends, or restores the slave, nor in any way affects or furthers his claim or promotes his, rights, unless it does so incidentally, by forbidding acts which may occasion disorders in our own society. If this view of the nature of this act of our legislature be correct, it is a police regulation, and- is not ancillary to the act of congress, or in violation qf the constitution of the United States.

The remaining question is as to the repugnancy of this act to our own constitution and the ordinance of 1787. The case of Sarah v. Borders, ante 341, and the cases there referred to, have discussed the effect of the ordinance upon our legislation. All persons in this state are deemed to be free (3 Scam. 71), but the indictment declares that Julia is a slave, and the demurrer admits all the facts that are well pleaded. Did then the constitution effect her emancipation on entering our borders ? [* 471]

The demurrer admits that Julia is a slave owing service to Mrs. Liles in the state of Louisiana, where she resides; and that the slave was brought into this state merely on and for the purpose of herpassage from Kentucky to Louisiana, and that Julia escaped without her knowledge or consent. The only question, therefore, is, the right of transit with a slave. For if the slave upon entering our territory, although for a mere transit to another state, becomes free under the constitution, then the defendant in error is not guilty of concealing such a person as is described in the law and in the indictment. I cannot see the application to this case, if the law of nations in relation to the domicil of the owner fixing the condition of, and securing the right of property in this slave, and regarding the slave as apart of the wealth of the state of Louisiana; and our obligation of comity to respect and enforce that right. Story’s Conflict of Laws §§ 27-29, 33-38, as to the meaning and rights of “ comity,” §§ 349, 414, 472. As the question is here presented, it is not as to the civil rights of the master and slave, being affected by our constitution, or. whether by the laws of this state the owner could enforce the obligation of service; but it is as to the guilt of the plaintiffin error, in violating the provisions of our municipal regulations. It may be one thing to recognise the existence of the laws and institutions of another government or nation, as fixing a condition of slavery upon a part of her population, and creating, sanctioning, and enforcing the rights of masters over it; and another thing to provide remedies to enforce those rights within our jurisdiction. Story’s Conflict of Laws, § 196 and 96 a, and authorities referred to. The 149th section of the criminal code, for a violation 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 adequate remedies to enforce, within its jurisdiction, that obligation of service, it has provided by this penal sanction, that none shall harbor or conceal a slave within this state, who owes such service out of it. Every state or government may, or may not, as it chooses, recognise or enforce this law of comity. Story’s Conflict of Laws 57 ; 18 Peters 519, 589. And to this extent this state has expressly done so. If we should therefore regard ourselves as a distinct and separate nation from our sister states, still as by the law of nations (Vattel, Book 2, 183, eh. 10, § 132, 184, §§ 133-4), the citizens of one government have a right of passage through the territory of another, peaceably for business or pleasure, and that too without the latter’s acquiring any right over the person or property (Vattel, Book 2, 174, §§ 107-9), we could not deny them this international right, without a violation of our duty. Much less, could we disregard their consti- [* 472] tutional right, .as citizens of one of the states, to all the rights, immunities, and privileges of the citizens of the several states.

England will not enforce the law of comity in relation to the institution of slavery in other countries, 2 Hag. 94; 2 Barn. & Gres. 448; 3 D. & R. 679 ; Sommersette’s ease, Loffts. 1. Neither will Massachusetts, 18 Pick. 193; 8 Metcalfe 72. France has made a partial recognition of it only. Law of slavery 348, But Louisiana (8 Louisiana 475 ; 14 Martin 401), Kentucky (2 A. K. Marsh, 476-7), Missouri (3 Missouri 271-2), Mississippi (Walker’s Miss. 36), Virginia (1 Leigh. 172; Gilmer 143; Munf. 393; 6 Randolph 566), have recognised it, and held persons to be free, who had become so by the laws and constitutions of free states.

It would be productive of great and irremediable evils, of discord, of heart burnings, and alienation of kind and fraternal feeling, which should characterize the American brotherhood, and tend greatly to weaken, if not to destroy the common bond of union amongst us, and our nationality of character, interest and feeling. Thousands from Kentucky, Virginia, Maryland, Tennessee and the Carolinas, and other southern states have sought and found free and safe passage with their slaves across our territory, to and from Missouri. It would be startling, indeed, if we should deny our neighbors and kindred that common right of free and safe passage, which foreign nations would hardly dare deny..

The recognition of this right is no violation of our constitution. It is not an introduction of slavery into this state, as was contended in argument; and the slave does not become free by the constitution of Illinois by coming into the state for the mere purpose of passage through it.

It is the opinion of the court that the judgment be affirmed.

Lockwood, Justice,

delivered the following separate opinion: I concur in the conclusion at which this court has arrived, that the judgment of the court below ought to be affirmed ; but as I do not in the views and reasoning upon which that conclusion is based, I deem it proper to give my own reasons for affirming the judgment.

The indictment alleges, in substance, that Julia, a woman of color, by the laws of Kentucky and Louisiana, owes service to Sarah W. Liles, who resides in the state of Louisiana, and that while the said Sarah W. Liles was travelling from Kentucky to Louisiana, with her said slave, the said slave escaped secretly from her said mistress; all of which the defendant knew, but did unlawfully secrete the said Julia.

The defendant demurred to the indictment, which being overruled by the court, he stood by his demurrer, and thereupon the court below entered a fine against him. [* 473]

It is evident that the state’s attorney, in framing his indictment, did not proceed on the ground that Julia was a fugitive slave escaping from a slave state, and fleeing into this state ; for the facts stated- in the indictment show that she was brought into this state by her mistress. It is evident that this case does not come within the provisions of the constitution and law of the United States on the. subject of fugitives from labor. This position is fully sustained by most respectable and unexceptionable authorities. In the case of Butler v. Hopper, 1 Wash. C. C. R. 449, it was held by Justice Washington, in terms, that the provision of the constitution relative to fugitive slaves does not extend to the case of a slave carried voluntarily by his master into another state, and there leaving him under some law declaring him free.

In a more recent case, ew parte Simmons, 4 Wash. C. C. R. 396, which was an application for a certificate to take a slave out of the state of Pennsylvania, under the 3d section of the act of February 12th, 1793, in relation to fugitives from justice and labor, the same eminent judge more directly decided the same point, holding that both the constitution and laws of the United States apply only to fugitives escaping from one state, and fleeing to another, and not to the case of a slave voluntarily brought by his master into such state.

In the case now under consideration it has been elaborately argued by the counsel for the plaintiff in error, that the 149th section of the criminal code of this state violates the constitution of the United States, and the act of congress relative to fugitives from justice and labor. Applying the doctrine of the above authorities to the facts of this case, as set forth in the indictment, and it clearly follows that that question does not arise in this case.

That every person in this state, without any regard to the color of his skin, is presumed to be free, admits of no doubt. This doctrine was fully laid down and sustained by this court in the cases of Bailey v. Cromwell et al. 3 Scam. 73; Cook v. Kinney, 3 Scam. 233.

Julia then was not a fugitive from labor, under the constitution, of the United States and the law of congress, and being brought into this state by her mistress, where the presumption is in favor of her freedom, the question arises what takes her case out of the operation of this general rule ?

The answer is that her ease is taken out of the operation of the general rule by the law of comity, by that law established by common consent among civilized nations or states, which binds them to sustain the institutions and laws of each other, under certain restrictions. The extent and force of this law of [* 474] comity is to be ascertained and determined by the courts. The legislature seldom or never undertakes to declare how far the laws of other nations shall be recognised and carried into effect. Judge Story, in his Conflict of Laws, page 25, in considering how the rule as to foreign laws is to be promulgated, whether it should be done by the legislature or the judicial power, says: “ In England and America the courts of justice have hitherto exercised the same authority (that is the authority in question) in the most ample manner; and the legislature has in no instance (it is believed) in either country^ interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times as they have arisen; and so far as the practice of nations and the jus gentium privatum ' has been supposed to furnish any general principle, it has been followed out with a wise and manly liberality.” So also Chief Justice Parker, in Blanchard v. Russell, 13 Mass. 6, says: "As the laws of foreign countries are not admitted exproprio vigore but only sx commitate, the judicial power will exercise a discretion with respect to the laws they may be called upon to sanction; for if they should be manifestly unjust, or calculated to injure their own citizens, they ought to be rejected.” The same doctrine was substantially laid down by Lord Stowell in 2 Haggard 54. From these authorities the conclusion follows, that the courts of this state have the power independent of legislature enactment, rmder the law of comity, and in the exercise of a sound discretion, of determining what laws of other states shall be recognised and enforced in this. Is the case presented in the record of such a character as to appeal to tbe sound discretion of this court to enforce tbe laws and institutions of a sister state? In answering this question regard should be bad to tbe geographical position of Illinois, as well as to tbe relations we sustain to our sister states, confederated under the same general government.

First. In geographical position Illinois is situated between the states of Kentucky and Missouri, and by the laws of both these two latter states slavery is permitted. The directed route of travel by land between these two states lies through the state of Illinois. The intercourse between many other of the slave states and Missouri, when carried on by land, must necessarily be through the state of Illinois. The state of Missouri has been populated principally by emigrants from Kentucky and other states. For upwards of thirty years past these emigrants,' with their slaves, have been permitted, without objection, to pass through this state. While this free passage through the state; with their slaves, recog-nised as property in the states whence they emigrated, has been of great convenience to the slaveholding states, it has not been without its advantages to our own state. Being of mutual advantage it has been permitted for more than thirty years past. If permitted for the future, the like advantages [*475] will continue to our own state, and the same convenience to our sister states.

If the courts of this state, however, should decide that the owner of slaves was not protected under this law of comity, while passing through this state, the result would be that the emigrant with slaves could not pass through our borders. It needs no argument to prove that this privilege of passing through our state, either for business or pleasure, with their slaves, is a very great convenience to oür sister states, and if, after having permitted them this privilege for the last thirty years, we were now to deny it, could they not justly charge us with having availed ourselves of our local position to do them a serious and unnecessary injury ? If the owner of slaves emigrating through this state, without objection on our part, is not protected under this law of comity, it follows that all the slaves who have passed through this state to Missouri are free, and consequently unjustly held in bondage. The facts growing out of our geographical position, the past relations subsisting between this and neighboring states, the inconveniences to which we would subject them by a change of these relations, the loss of benefits to ourselves following a change of these relations, are such as appeal strongly to the discretion of this court.

The relations we sustain to our sister states also furnish strong reasons why the law of comity should be expanded, so as to meet the exigencies arising out of that relation. What, then, are the relations we sustain to other states which ought to affect our pub-lie policy towards them? ■ They are not foreign states. We are bound up with them by the constitution of the United States into a Union, upon the preservation of which no one can doubt that our own peace and welfare greatly depend. Other nations may cherish friendly relations with each other, and endeavor to promote alliances and frequent intercourse, from fear of foreign war, or a desire of commercial prosperity. But to us these relations and this intercourse have a value and importance which are inestimable. They are the grounds of safety for our domestic peace, and for our hopes of the continuation of the happy government under which we live. ' Whatever injures one state injures the others. It is consequently our duty to consult the good of all the states, and so frame and administer our laws, that we give our sister states.no real cause of offence. We ought to do them all the kind offices in our power, consistently with our duty to ourselves. Thus will be produced that concord, that union of affection, and interest among the states, which may prove an enduring cement to that happy and glorious union, upon the continuation of which our hopes-of domestic peace and rational freedom so eminently depend.

[*476] By the law of nations, it would be considered just cause of complaint, if we should arbitrarily refuse to the citizens of foreign nations at peace with us permission to pass through our territories, with their property. If this be so, as regards the citizens of foreign nations, how much greater propriety does there exist that we should extend this boon, if boon it be, to our fellow citizens, who are also our friends, our neighbors and our relations. That our denial to the people of our sister states to have the right of passage for themselves and their slaves would inflict on them a most serious injury cannot be doubted.’ The bitterness which usually characterizes border animosities admonishes us of the propriety of cultivating, by every just means in our power, that social intercourse with our neighbors which will be productive of mutual esteem and good will. Should we refuse them the privilege of taking their slaves through our state, would there not be danger that such refusal would engender feelings on their part not favorable-to a continuance of our happy Union? Am there reasons of sufficient magnitude to induce us to risk such consequences? I think not. Our interest, our duty, our love to our whole country, conspire to prove the propriety of allowing our fellow citizens of our sister states the right to travel through this state,’ either as emigrants or travelers, with their slaves, unless serious injury will result to ourselves by giving such permission. How injury can result to the people of this state, by-such a permission, I am entirely at a loss to conceive. On the contrary it might be shown, that, in many instances, it was to their decided advantage.

It is, however, said that it is contrary to our policy to tolerate slavery. This objection is too broad. By the constitution and laws of the United States, the relation of master and slave is recognised as existing, and slaves escaping from their masters in a slave state, and fleeing to this, are to be surrendered up. By the act under which the defendant is indicted, and by numerous other acts, the relation of master and slave is fecognised. Slavery, then, to a limited extent, is sanctioned by our policy. But, in permitting emigrants and travelers the use of our highways, we do not thereby express any opinion upon the propriety of slavery. That question is still an open one, so far as it relates to its moral and political bearings. We simply determine that while the master and slave are peaceably passing through our state, we will so far recognise the relation, that we will not permit our citizens, during their transit, to interfere with that relation.

In considering this question it may be well also to enquire what effect our refusal would have upon the slave himself. Would such refusal be injurious or beneficial to him ? It would not certainly tend in the slightest decree to emancipate him, nor would it lighten 1ns burdens. It would not prevent the master from emigrating or journeying. The master could still remove him to Missouri by taking a circuitous and tedious route [*477] to that state, without passing through our state, and merely subjecting the slave to a long and toilsome journey, probably on foot. Our refusal, then, would seriously injure the master, and not less seriously the slave. If, then, to grant to the citizens of ‘slaveholding states the right of passage through our state, with their slaves, will benefit both the master and the slave, and not injure us, what possible objection can there be to extending this privilege to them ?

The 149th section of the criminal code, so far as it applies to harboring or secreting the slaves of citizens of our sister states, has implicitly sanctioned the law of comity, and by so doing the legislature has manifested a disposition to cultivate a spirit of harmony among the different members of the Union which it well becomes the courts of justice to imitate.

Upon the whole I am of opinion that this section of the criminal code does not, when correctly construed and applied, trench upon the right of Congress exclusively to legislate upon the subject of fugitives from labor; and that, by comity, emigrants and travelers may pass through this state with their slaves, and every person who shall knowingly harbor and secrete any such slave, while in his transit, renders himself liable to the penalties of that statute.

I am therefore of opinion that the judgment below should be affirmed.

Wilson, Chief Justice, concurred in the opinion of Justice Lockwood, and Browne, Justice, was not present when the opinion was delivered.

Judgment affirmed.