“The question is, Were these persons slaves at the time when Sir G. Cockburn refused to do the act which he was desired to do? I am decidedly of opinion that they were no longer slaves. The moment they put their feet on board of a British man-of-war, not lying within the waters of East Florida, (where undoubtedly the laws of that country would prevail,) those persons who had before been slaves were free.... Slavery is a local law, and, therefore, 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 slavery is recognized by the local law, they have broken their chains, they have escaped from their prison, and are free.” 2 Barn. & Cres. 466-7; Forbes vs. Cochrane, S. C., 3 Dowl. & Ryland, 679.
“I am of opinion,” says Holroyd, J., in the same case, “that according to the principles of the English law the right to slaves, even in a country where such rights are recognized by law, must be considered as founded, not upon the law of nature, but upon the particular law of that country.”
“The law of slavery is a law in invitum; and when a party gets out of the territory where it prevails, and out of the power of his master, and gets under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue, and there is no right of action against a party who merely receives the slave in that country, without doing any wrongful act.”
The definition of slavery given by the Roman law implies that it is local: Servitus est constitutio juris gentium, qua quis dominio alieno, CONTRA NATURAM, subjicitur. Commonwealth vs. Aves, 18 Pick. Rep., 193; Lunsford vs. Coquillon, 14 Martin’s Rep. 402. “The relation of owner and slave is a creation of the municipal law.” Rankin vs. Lydia, 3 Marshall, 470, Ky.; Butler vs. Hopper, 1 Wash. C. C. Rep. 499; Ex parte Simmons, 4 Wash. C. C. 296; Marie Louise vs. Marot et al., 9 Curry’s Louisiana Rep. 473.
This point may be presented in another light. By the law of nature all men are free. But in some governments the law of the state, upheld by the power of the state, overrides the law of nature, and enslaves a portion of the people. The law of nature recedes before this legalized violence; but it recedes no farther than the legalized violence drives it back. Within the jurisdictional limits of such states, then, slavery is made legal, though it is not made right. But if a slave passes out of the jurisdiction where violence overpowers right, into a jurisdiction where right is superior to violence, he is then free; not because there is any change in the man, but because there is a change in the laws to which the man is subject.
There may, however, be some further positive law which, though it does not authorize the buying or selling of a slave, still does provide that an escaped or escaping slave may be recaptured and redelivered into bondage. Such is the third paragraph of the second section of the fourth article of the constitution of the United States. Such, too, is the act of Congress of February 12, 1793, providing for the recapture of fugitive slaves. This, however, would not be without positive law.
The debates in all the conventions for adopting the constitution of the United States, proceed upon the ground that slavery depends upon positive law for its existence. If it did not,—if a man who has a legal right to a slave in Virginia, has a legal right to him anywhere,—then the provision in the constitution, and the act of 1793 for recapturing fugitive slaves, would have been unnecessary.
On the south side of a boundary line, then, slavery may exist by force of positive law; while, on the north side, in the absence of any such law, slavery is unlawful. A slave passing out of a jurisdiction where slavery is legalized, into a jurisdiction where it is not, becomes free. It is as though a man should migrate from one of those South Sea islands, where cannibalism is legalized, and where the public authorities, according to the reports of travellers, not only condemn and execute a criminal, but dine on him, after he is executed,—it is, I say, as though the subject of such a government should migrate into one where cannibalism is not lawful, and where, therefore, though he should be condemned and executed for crime, it would be no part of the sentence or the ceremony that he should be eaten by his judges. He is out of cannibal jurisdiction.
The right of freedom is a natural right. It is a positive existence. It is a moral entity. Like the right to life, it pertains, by the law of nature and of God, to every human being. This moral right continues to exist until it is abolished. Some act abolishing this freedom, then, must be proved; it must be proved affirmatively, or else the fact of freedom remains. This is the solid and indestructible ground of the maxim, that slavery can exist only by positive law; that it is a local institution; that the right of freedom must first be abolished before slavery can exist.
2. My second position is this: That a man’s legal condition may be changed by a change in the government over him, while he remains in the same place, just as effectually as it can be changed by his removal to another place, and putting himself under another government. The inhabitants of the North American colonies did not change their place of residence when they passed from under the government of Great Britain, and came under the government of the confederation. The Mexicans, inhabiting the then states of California and New Mexico, did not change their place of residence, when, on the thirtieth day of May last, they ceased to be citizens of the Mexican republic, and became citizens, or quasi citizens of the United States. Their political relations were changed, not by their removal from under the canopy of one government and placing themselves under the canopy of another government, but by the withdrawal of one government from over them, and by the extension to them of certain political rights and capacities under another government. Before this thirtieth day of May, they could have committed treason against Mexico, but not after it. Before it, they could not commit treason against the United States; but when they shall be citizens of the Union, they can. These vital changes in their relations are without any change in their residence. Within my recollection, an old gentleman died in Massachusetts, who had lived in five different towns, but still remained where he was born, like one of the old oak trees on the homestead. The part of the original town where he was born had been set off and incorporated into a new town; and that part of the second town where he lived, into a third; and so on, until he died in the fifth town without any change of domicile. Now, this man lived under the jurisdiction and by-laws of five towns, as they were successively incorporated over him, just as much as though he had struck his tent five times, and placed himself, by successive migrations, under five different municipal jurisdictions.