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P R E P A C E. 
 
 The leading motive for publishing this report, is to inform those who feel 
 an interest in the matter, what was really done, both by the authorities of 
 Ohio and Kentucky. By this it will be seen that the Governor of Ohio 
 did not neglect to make the proper requisition, at the hands of the Gover¬ 
 nor of Kentucky, for the fugitive Kidnappers; and that, however derogatory 
 the statute of Kentucky of 1820, may be to the Constitution of the United 
 States; and however erroneous the decision of the court may have been, the 
 authorities of Kentucky treated both the Executive of Ohio and his agent 
 with the utmost respect and courtesy. Of this I have spoken in, what I 
 conceived to be proper terms in my official report to the Governor of Ohio, 
 as well as in my argument at bar in Kentucky. 
 
 I went to Frankfort a total stranger, with letters of introduction from two 
 or three gentlemen of Cincinnati, which I did not at first present, prefer- 
 ing first of all, to present the official documents to the Chief Executive, that 
 I mtght be respected, if at all, because 1 was the representative of Ohio, 
 rather than on my own account or that of my friends. Governor Owsley 
 received me with great kindness and cordiality, and immediately issued his 
 warrant for the arrest of the fugitives, and on the day following the Sheriff 
 reported them in custody. Judge Brown, who was charged with the hearing 
 of the cause called on me at my lodgings to inform me that he would post¬ 
 pone all other business, and set the cause for hearing on any day or days which 
 1 might designate, and that he had instructed his Clerk to issue Subpoenas 
 for any witnesses I might require, and requested Mr. Craig in whose custody Fin¬ 
 ney was, to allow me free access to him at all times for the purpose of prelim inary 
 consultation, suggesting, at the same time, his desire to hear all the questions 
 involved fully discussed. 
 
 The Clerk, the Sheriff, and other officers performed their duty with 
 equal alacrity, and promptness, and 1 had every facility for a full, fair and 
 impartial investigation afforded me, not merely by the officers, but by the 
 members of the bar and other private citizens, of character and influence 
 
 In the progress of the case, it will be seen that not only Phinney’s case, 
 but incidentally, the subject of slavery itself, was discussed with plainness, 
 at least, in the midst of a very large assembly of spectators, all of whom 
 listened with profound attention, and none of whom manifested the least 
 sign of disrespect or hostility. 
 
 I have thought proper to say thus much from a sense of justice to Ken¬ 
 tucky, as well as for the purpose of explaining those parts of the argu¬ 
 ment which might otherwise be construed into flattery. 
 
 WILLIAM JOHNSTON 
 
Franklin Circuit Court , Kentucky , April 10/A, 1846, before the 
 Hon. Mason Brown, Circuit Judge. 
 
 The State of Ohio v . Forbes & Armitage. 
 
 SLAVERY—KIDNAPPING—FUGITIVES FROM JUSTICE 
 
 A writ was produced in open Court, issued by William 
 Owsley, Governor of Kentucky, setting forth that Mordecai 
 Bartley, Governor of Ohio, had demanded the persons of 
 A. C. Forbes and Jacob Armitage, fugitives from justice, 
 charged by affidavit, with having kidnapped Jerry Phinney, 
 a free colored man, resident of Ohio, and that the Governor 
 of Ohio had appointed William Johnston his agent, to receive 
 said Forbes and Armitage, and bring them back to be tried 
 under the laws of Ohio, upon said charge of kidnapping. The 
 writ of Governor Owsley commanded the sheriff to arrest said 
 Forbes and Armitage, and take them before a Circuit Judge, to 
 be examined and dealt with according to the provisions of an 
 Act, entitled “An Act to amend the Act reducing into one the 
 several acts authorizing the apprehending of fugitives from 
 justice:” Approved Jan. 27, 1820. 
 
 The writ bore the sheriff’s return, that it had been duly 
 executed on said Forbes and Armitage, who were then present 
 in Court, in custody of the sheriff. 
 
 Mr. William Johnston appeared on behalf the State of 
 Ohio, and Mr. Charles S. Morehcad on behalf of Forbes and 
 Armitage. 
 
 The Court asked the attorney for Ohio, if he desired to 
 produce any testimony, tendering the power of the Court to 
 enforce the appearance of any witnesses required. 
 
4 
 
 Mr. Morehead read the statute of 1820, and waived all 
 technicality touching the points of indictment, affidavits and 
 identity. 
 
 Mr. Johnston would take no technical advantages; but he 
 desired a fair investigation which should in good faith respect 
 the rights and dignity of Ohio and Kentucky, and the result 
 of which, be it what it might, should satisfy the authorities and 
 the people, and allay excitement on both sides of the water. 
 
 Mr. Morehead presented the issues, that Jerry was a slave ? 
 and that Forbes and Armitage had the approbation of his 
 owners, in taking him in Ohio, and delivering him to them in 
 Kentucky. 
 
 After the introduction of the testimony, which is sufficiently 
 stated in the opinion of the Judge, 
 
 Mr. Morehead opened the argument, stating his points as 
 foollows: 
 
 1. Under the peculiar writ issued by the Governor of 
 Kentucky, and under which Forbes and Armitage were now 
 before the Court, the only enquiries which could be made, were, 
 is Jerry a slave? and had Forbes and Armitage the authority 
 of the owner, or her approbation for his recapture? 
 
 Mr. Johnston replied, traversing the grounds of Mr. More¬ 
 head, and urging the following positions in support of the 
 demand of the Governor of Ohio, for the fugitives, Forbes and 
 Armitage: 
 
 1. The Kentucky statute of 1820, is at variance with the 
 constitution of the United States, and the law of Congress of 
 1793, and void. 
 
 2. If the statute of 1820 be void, the Court has jurisdiction 
 only of the question of identity, under the statute of 1815. 
 
 If the statute of 1820 be valid, and the Court has jurisdiction, 
 then three questions of fact are involved. 
 
 1. Is Jerry a slave, and the property of any one? 
 
 2. Who is his owner? 
 
 3. Did Forbes and Armitage act as the agents, or with the 
 approbation of the owner? 
 
 The second point is conceded, for if Jerry be a slave, Mrs. 
 Dong representing in her own right, and as administratrix o< 
 
5 
 
 her deceased husband, 26-27ths of Jerry, for the purposes of 
 this case, may be considered the owner. 
 
 The third point is conceded also, as to Forbes, but insisted 
 on as to Armitage, because there is no proof of the exjiress 
 approbation of the owner as to him. 
 
 The main question is upon the first point. Was Jerry a slave 
 at the time Forbes and Armitage aided in seizing him at 
 Columbus? 
 
 1. Slavery is contrary to the law of nature, contrary to the 
 law of nations, and exists only by force of the municipal law of 
 the land. 
 
 2. Slavery is strictly local, and confined within the territorial 
 limits of the State where it is sanctioned, and cannot follow the 
 fugitive beyond those limits, except by positive law, binding on 
 both sides of the line. 
 
 3. The only law varying these great principles of natural and 
 international law, is that to be found, 1st in the ordinance of 
 1787 for the government of the North Western Territory; 2d, 
 in the Constitution of the United States; and 3d, in the Law of 
 Congress of 1793, which latter cannot be so construed, as to 
 extinguish the guaranty of liberty, contained in the ordinance 
 of 1787, or to extend the rights guaranteed to the owners of 
 fugitive slaves by the Constitution of the United States. 
 
 4. The clauses of the ordinance of 1787, of the Consti¬ 
 tution of the United States and the law of Congress of 1793, 
 authorizing fugitives from labor to be pursued into the North 
 Western Territory, being contrary to the law of nature, con¬ 
 trary to the laws of nations, and restrictive of human liberty, 
 must be strictly construed. 
 
 5. Strictly construed, these clauses can extend to but one 
 ease—that of an escaping slave . This implies a voluntary act 
 of the slave contrary to the will of the master, and if by any 
 other than by his own will he is carried into the North 
 Western Territory, the relation of Slavery ceases as com¬ 
 pletely, as if he had been carried into France, or any other 
 foreign State. 
 
 6. If the slave becomes free but for a moment, he can 
 never again be reduced to slavery ; not even by his own act, 
 because the right of freedom is unalienable. 
 
6 
 
 7. It matters not that the slave was carried beyond the line 
 by a bailee to whom he was hired ; if he is carried over in 
 the relation of a slave, even by a person having a temporary 
 dominion over him, lie becomes ipso facto free, and the own¬ 
 er has his right of action against the bailee for the loss of 
 his services. The law governing chattels docs not apply 
 to property in human beings. God gave man dominion over, 
 and property in the beasts of the field, &c., but the property 
 in man he reserved to himself. The property in animals is 
 natural and binding every where ; That in man is conven¬ 
 tional, municipal, local, and to be kept within the literal mean¬ 
 ing of the written law. 
 
 In answer to the positions of Mr. Johnston, Mr. Morehead 
 continued : 
 
 1. That the question of the constitutionality of the Kentuc¬ 
 ky act of 1820, could not arise in this proceeding. In ordi¬ 
 nary cases, the question is perhaps exclusively an executive 
 one, except as to the single inquiry of identity. In this case 
 the Governor of Kentucky had issued his writ in obedience to 
 the requisition of the Governor of Ohio, in conformity with the 
 act of 1820 ; and this Court had nothing to do but to make 
 the inquiries directed by the writ. If the act of 1820 be at 
 variance with the Constitution of the United States, and the 
 law of Congress passed in pursuance thereof, the Governor 
 might have disregarded it, and issued his writ as in ordinary 
 cases, and this Court, it may be conceded, would be compelled 
 to obey the Executive mandate upon proof of identity alone.— 
 But there is no Executive mandate to deliver these persons to' 
 the agent of the State of Ohio, unless it is ascertained that 
 Jerry is a free man,-or that they acted without the authority 
 or approbation of the owner. 
 
 The alleged fugitives cannot be delivered up under this writ, 
 without the preliminary inquiries directed by the writ itself. 
 The constitutionality of the act of 1820, cannot therefore 
 arise, and need not be discussed. 
 
 2. Is Jerry a slave ? 
 
 1. Slavery is what the municipal law has made it, the rights 
 growing out of which extra-territorially are guaranteed by the 
 Constitution of the United States. Whether in conformity to 
 
I 
 
 natural or to divine law is no question here, and ought not to 
 affect in any degree the fair, liberal and just exposition of the 
 laws securing those rights. 
 
 2. The ordinance of 1787 for the government of the north¬ 
 western territory, it is true, declares “that there shall he neith¬ 
 er slavery nor involuntary servitude in the said territory.” But 
 in the case of Rankin v. Lydia , 2 A. J\I. Marshall, 4(17, deci¬ 
 ded at the fall term of 1820, of the Court of Appeals, it is said, 
 that “ when the ordinance declares that slavery shall not exist 
 there, it evidently means among the inhabitants and settlers, 
 and not among the travellers or sojourners there. Their case 
 is not affected by the provisions of the ordinance ; against 
 them no provision exists.” 
 
 The same principle is recognized and enforced in the case of 
 Graham v . Strader, 5 B. Monroe, 153. In that case the 
 question is directly decided, that the owner of a slave, resi¬ 
 ding in Kentucky, does not forfeit his slave by taking him to 
 Ohio, or permitting another to do so, where the object of the 
 visit is temporary, or in other words, where the party taking 
 him there was a mere sojourner, and not domiciled. 
 
 3. The slave Jerry being taken to Ohio by a mere bailee, 
 without the approbation and against the consent of his owner, 
 and that bailee not being domiciled in Ohio, and returning 
 the slave to his owner in Kentucky, the ordinance of 1787 
 can have no effect on his condition upon the most technical 
 and strict construction of the ordinance. 
 
 4. Jerry not being.entitled to his freedom, in consequence 
 of being taken to Ohio by a bailee, the manner of his after¬ 
 wards leaving his owner, made him “ an escaping slave,' 1 ’’ in 
 the true and proper meaning of the terms. 
 
 5. After the return of Jerry by the bailee to his owner in 
 Kentucky, she could have maintained no action against him, 
 on the ground that he had become free, as settled by the be¬ 
 fore cited case of Graham v. Strader. 
 
 6. The ownership of the slave being admitted, and the pow¬ 
 er of attorney to Forbes fully proven, the law will imply that 
 authority was given to him to make use of all necessary means 
 to accomplish the object in view, and consequently that Armi- 
 tage acted with the approbation of the owner. 
 
7. The authority of the appellate Court is binding on this 
 Court, and it is useless to discuss the correctness of decisions 
 made elsewhere in conflict therewith. 
 
 Opinion op tiie Court. —Alexander C. Forbes, and Jacob 
 Armitage having been arrested by the Sheriff of Franklin 
 County, under a warrant from the Executive, were brought 
 before me in pursuance of the mandate thereof. The warrant 
 after reciting that they had been demanded by the Governor 
 of Ohio, as persons charged by affidavit before Alexander Pat¬ 
 ton, a Justice of the Peace, of Franklin County, Ohio, with 
 seizing upon and by' violence keeping in restraint, with intent 
 to transport out of the State of Ohio, one Jeremiah Finney, 
 said to be a free man of Ohio, but claimed as a slave of Ken¬ 
 tucky, directed the said Sheriff to u apprehend and arrest the 
 said Alexander C. Forbes, and Jacob Armitage, and upon their 
 apprehension, to bring them before some Circuit Judge of this 
 Commonwealth, that the said Circuit Judge may proceed by 
 proper and legal testimony, to inquire into the matter, so far 
 as shall be necessary to ascertain the identity of the said Forbes 
 and Armitage, and their guilt or innocence in the premises, 
 according to the statute of Kentucky, 27th January, A. D. 
 1820, in relation to fugitives from justice ; and if they, the 
 persons mentioned in this my warrant, be identified as offen¬ 
 ders against the laws of Ohio, and be found not entitled to the 
 benefit of the provisions of the said act of 1820, that the said 
 Judge may order them to be delivered up to William Johnston, 
 Esq., who has been duly authorized, by the Governor of the 
 State of Ohio, to receive and convey the said Alexander C. 
 Forbes, and Jacob Armitage, to the State of Ohio, to be dealt 
 with according to law,” &c., &c. 
 
 The facts proved upon the inquiry, were substantially these : 
 
 Jerry Finney was born a slave in the house of Hezekiah 
 Brown, of a colored woman named Rose. This woman and 
 Jerry were held by Brown, not in his own right, but as the 
 property of his wife ; Rose having belonged to a former hus¬ 
 band by the name of Long, by whom, previous to her marri¬ 
 age with Brown, she had eight or nine children, amongst oth¬ 
 ers, Thomas Long, Tn the last will and testament of Heze- 
 
9 
 
 kiah Brown, he loaned to his wife a number of articles of 
 property, real and personal, amongst other things, the boy 
 Jerry, to be held during her natural life, and after her death 
 to go to her heirs. After the death of Brown, his executors, 
 Henry Brown and John D. Richardson, executed a paper re¬ 
 linquishing to Mrs. Brown, who survived her husband, all claim 
 on the part of Brown's estate to the boy Jerry, and declaring 
 that they knew him to be her property, and part of her former 
 husband’s estate. Thomas Long, one of Mrs. Brown’s sons 
 by her former husband, purchased in his lifetime the interests 
 of all the other heirs except three, and died, leaving Bath- 
 sheba Long his widow, who .administered upon his estate, and 
 purchased in her own right the remaining interests of the oth¬ 
 er heirs, except the third of one share, which is outstanding. 
 Mrs. Long has settled up, and made distribution of all her 
 husband’s estate except Jerry. One of her children is still a 
 minor. 
 
 Sixteen or seventeen years ago, Mrs. Brown, after her hus- 
 husband’s death, hired the boy Jerry to a gambler by the name 
 of Allgaier, who represented that he was going to work him 
 on a farm in Woodford county, Kentucky—witli a stipulation 
 on Allgaier’s part, that he should not take him out of the 
 State. 
 
 Allgaier took Jerry to the State of Ohio, and kept him in 
 his services there for six months ; when learning the fact, Mrs. 
 Long, who held the remainder in Jerry, wrote Allgaier a let¬ 
 ter, directed to him at Cincinnati, requiring him to return Jcr- 
 ry immediately, and threatening to sue him if he did not com¬ 
 ply ; upon which Allgaier returned him to his mistress, Mrs. 
 Brown, who was still living, now deceased. A few weeks after, 
 Jerry asked permission to return to his last place of residence 
 for his clothes, which his mistress gave him, and he went away 
 and never returned till he came back in custody of Forbes 
 and Armitage. Mrs. Brown advertised him as a runaway 
 slave, and ottered a reward for his apprehension ; and since 
 then, knowing that he was in the State of Ohio, Mrs. Long 
 has given three different powers of attorney, at different times, 
 to different persons, to bring him back, but always failed. A 
 short time ago, she, Mrs. Long, executed regularly, according 
 
10 
 
 to law, a power of Attorney to Forbes, whom she at the time 
 had never seen, to appehend and return Jerry to her, at Frank¬ 
 fort, Kentucky. It is admitted that the prisoner at the bar is 
 the same Forbes, and that the prisoner Armitage acted in the 
 matter of Jerry's seizure, in conjunction with Forbes. 
 
 All the questions of law and fact, in any respect bearing 
 upon the foregoing state of the case, have been argued with 
 great zeal and distinguished ability, by the gentleman repre¬ 
 senting the State of Ohio, and the counsel retained by the pris¬ 
 oners, and I regret that the necessity for an immediate deci¬ 
 sion, and the other duties of the Court, now in session, prevent 
 me from presenting and noticing in detail the various positions 
 respectively taken, to illustrate and sustain the points so fully 
 and ably debated by them. 
 
 It is urged in substance by the counsel for the State of Ohio: 
 
 1. That the statute of 1820 of Kentucky, is at variance with 
 the Constitution of the United States, and the law of Congress 
 of 1793, and void. 
 
 2. That if the statute of 1820 be void, the Court has juris¬ 
 diction only of the question of identity, under the statute of 1815. 
 
 3. That if the statute of 1820 be valid, and the Court has 
 jurisdiction, then it is insisted that in view of the facts as prov¬ 
 ed, Jerry is by the paramount law of the land free, and cannot 
 be regarded as an escaping slave. 
 
 4. That if Jerry be a slave, and the power of attorney valid, 
 for the protection of Forbes, still is it not so as to Armitage, 
 as there is no proof of the express approbation of the owner as 
 to him. 
 
 The converse of these propositions is insisted upon by the 
 counsel for the prisoners. He also insists that the constitution¬ 
 ality of the act of 1820 is not necessarily involved in this in¬ 
 quiry. That the executive is the sole judge of the terms and 
 conditions upon which he will order the surrender of a fugi¬ 
 tive, and that he alone is competent to decide whether he will 
 or not be controlled by the act of 182 ). 
 
 The second section of the fourth article of the constitution 
 of the United States, and the act of Congress of 1793, respect¬ 
 ing fugitives from justice, so far as they prescribe the mode 
 for the arrest and delivery of fugitives, are addressed exclu- 
 
11 
 
 sivcly to the Executive. The Constitution enjoins the duty, 
 and the act of 1793 prescribes the mode and conditions under 
 which that duty shall be performed. It is made strictly, and 
 in terms, an Executive act. The Executive alone is required 
 to order the arrest and direct the delivery. Indeed in the case 
 of the State of South Carolina ex parte Willard and wife, ads. 
 the State of New York, it was held that the demanding, ap¬ 
 prehending, and conveying away fugitives from justice under 
 the provisions of the Constitution, were ministerial acts, wholly 
 entrusted to the management and discretion of the Executive, 
 and were so exclusively of Executive cognizance, that they 
 were excepted out of the State habeas corpus act of South 
 Carolina, by the operation of the Constitution and laws of the 
 United States. And when certain persons were brought up 
 before a Judge of that State, by habeas corpus, who were un¬ 
 der arrest by order of the Executive of South Carolina, for the 
 purpose of being delivered to an agent of the Executive of 
 New York, w r ho had demanded them as fugitives from justice 
 in that state, their discharge was moved on various grounds ; 
 but the Judge decided that he had no power or authority to 
 discharge the prisoners, or in any way whatever to interfere 
 with the mandate of the Executive. See Sergeant's Constitu¬ 
 tional Laze, page 395. 
 
 The act of Kentucky, approved 27th January, 1820, in re¬ 
 lation to fugitives from justice, imposes restrictions upon the 
 delivery of fugitives by the Executive, which restrictions are 
 not found in the act of Congress of 1793, and it must rest 
 with the Executive to decide whether he will recognize those 
 restrictions as binding on him, or whether, disregarding the 
 said act, he will direct an unconditional delivery of the pris¬ 
 oners. 
 
 The Executive has directed the prisoners to be delivered up 
 on condition that they are not within the restrirtion of the act 
 of 1820. Should I, by my mandate, direct them to be deliv¬ 
 ered to the agent of Ohio upon any other terms than those 
 prescribed by the Executive, I would not only be exercising 
 Executive power, but would be exercising the same in direct 
 hostility to the will of the Executive. 
 
 As ancillary to the action of the Executive, it only remains 
 
12 
 
 to inquire whether a state of case exists, under which a deliv¬ 
 ery is directed. 
 
 The act of 1820 contains the following provisions : 
 
 Sec. 1 . Be it enacted by the General Assembly of the Com¬ 
 monwealth of Kentucky , • That in all cases wl^ere any negro 
 slave or slaves, have, or may hereafter run away from his, her 
 or their owner, or owners, and take protection in any of the 
 United States, and the owner or owners of such slave or 
 slaves, by themselves, their agent or any other person with 
 their approbation, shall have removed, or shall hereafter re¬ 
 move any such slave or slaves from any other State within the 
 United States into this Commonwealth, and he, she, or they 
 have been, or shall hereafter be indicted for the same, in any 
 one of the United States, and the Governor of said State shall 
 demand of the Governor of this State the person or persons 
 so indicted, or who may hereafter be indicted, to be delivered 
 to him agreeably to the Constitution of the United States and 
 this State, it shall be the duty of the Governor of this Com¬ 
 monwealth, upon such requisition being made according to law, 
 to issue his warrant to the Sheriff of the county where such 
 supposed fugitive may reside, if he has a known place of resi¬ 
 dence, requiring him to take into custody such supposed fugi¬ 
 tive or fugitives from justice, as are named in such warrant 
 and indictment, and bring him, her or them before a Circuit 
 Judge ; and if the Circuit Judge shall be of opinion that the 
 person or persons named in such warrant and indictment, are 
 the owner or owners of the slave or slaves named in such in¬ 
 dictment, or that ho, she or they acted as the agent, or by 
 
 approbation of the owner or owners of such slave or slaves, 
 
 it shall be the duty of the Judge to discharge the person or 
 persons, taken by virtue of said warrant, out of custody. 
 
 Sec. 2. Be it further enacted , That if the Judge shall be of 
 opinion that the person or persons taken into custody by virtue 
 of the Governor’s warrant, is not the owner or owners of the 
 slave or slaves in the indictment found against him, her or 
 them, in any one of the United States, for stealing and con¬ 
 veying a slave or slaves which are not their own property ; 
 or that he, she or they did not act as the agent, or by the 
 
 approbation of the owner or owners of such slave or slaves, 
 
13 
 
 then it shall be the duty of the Judge to remand such person 
 or persons into custody again, to be dealt with according 
 to the laws now in force on that subject. 
 
 Three questions are embraced in the inquiry under the act : 
 
 1. The identity of the prisoners. 
 
 2. Was Jerry an escaping slave ? 
 
 3. If Jerry was an escaping slave, did the prisoners remove 
 him from Ohio, as the authorized agents, or by the approba¬ 
 tion of his owner ? 
 
 The identity of the prisoners, as the persons demanded, is 
 admitted. The proof is satisfactory, that Forbes acted under 
 a regular and duly authenticated power of attorney from Mrs. 
 Long, and that Armitage acted with him and at his instance ; 
 and a just construction of the act must regard Armitage, 
 when thus acting, as acting underand by virtue of the power 
 of attorney, and with the approbation of Mrs. Long. 
 
 It remains to inquire, whether Jerry, at the time of his 
 removal from Ohio, was a fugitive slave. 
 
 It is true this question must be tested by the paramount law 
 of the land, and did the evidence exhibit the case of first 
 impression, every aid should be derived from, and respect 
 shown to the adjudications of our sister States, in ascertaining 
 what the law is upon the case as stated. But when the ques¬ 
 tion has been fully adjudicated by the Supreme Court of our 
 own state, such decision must be taken as conclusive evidence 
 of what the law is. In this case Jerry was born a slave. He 
 was never. taken beyond the limits of Kentucky with the 
 approbation or consent of his owner. His trip to Cincinnati 
 and continuance there in the service of Allgaier, was without 
 the knowledge and against the will of his owner. The bail¬ 
 ment to Allgaier was limited both as to time and place. By 
 the contract of hire lie was expressly inhibited from removing 
 him from the State of Kentucky. The act of Allgaier in 
 taking him to Cincinnati, could not be more prejudicial to the 
 rights of his owner, than if he had been taken there by a mere 
 trespasser, or had been stolen and then removed. 
 
 When we recollect the spirit of compromise and concession 
 under which the Constitution was adopted, and the deep inter¬ 
 est which many of the States felt in the question of fugitive 
 
14 
 
 slaves, it can scarcely be seriously contended, that the parties 
 to that instrument ever intended that the right of service 
 should, under such circumstances, be lost to the owner, and 
 his power of reclamation cease. But the Supreme Court of 
 this State, in the case of Graham v. Strader , 5 B. Munroe , 
 173, have expressly decided, that if the bailee of a slave, 
 even with the assent of the owner , take him to Cincinnati for a 
 temporary purpose, and while there employ him in his service, 
 and the slave afterwards return to Kentucky, no right of free¬ 
 dom is thereby acquired. That case must be regarded as con¬ 
 clusive of the present question. The subsequent elopement 
 of Jerry, after his return to Kentucky,, under pretence of 
 going to procure his clothes, made him an escaping slave. 
 
 It results, therefore, that the facts which have been proved 
 upon the inquiry, show that the prisoners are within the 
 protecting clause of the act of 1820, and that the warrant 
 of the Executive does not justify an order for their delivery 
 to the agent of the State of Ohio. All of which the Sheriff 
 is directed to certify to his Excellency the Governor of 
 Kentucky, upon the return of his warrant. 
 
 MASON BROWN. 
 
 April 13, I84fi. Judge 1 1th Judicial District' 
 
 SPEECH OF MR. JOHNSTON. 
 
 May it please your Honor : 
 
 Without setting up any claim to 
 modesty, I confess that I appear before you laboring under 
 great embarrassment—such as I never before felt. Not that 
 any inflamatory excitement is felt against me personally, for I 
 know there is none. Not on account of any personal hazard 
 to be incurred by anything I am about to say,—for I know I 
 am safe—but on account of the novelty of my position, and 
 the intrinsic importance of the cause in which I appear, and 
 the vast moment of the questions involved in it. I come here 
 
51 
 
 not to quarrel with the domestic institutions of Kentucky, nor 
 to add to the excitement unhappily too great on both sides of 
 the water. I had rather contribute my efforts to promote 
 peace and good will between citizens of sister States, whose 
 interests, rights and feelings arc so nearly one; who have so often 
 mingled the blood of consanguinity in the bonds of peace ;— 
 and the blood of patriotism on the field of battle, to secure the 
 common blessings of union, liberty and law to both. I come 
 here as the agent of the Executive of Ohio, with a legal requi¬ 
 sition for certain persons charged as fugitives from justice. It 
 is my mission to urge certain legal and international rights of 
 the State which I represent ; and I feel that in this community 
 I may safely discharge that duty as fully and boldly, as if I 
 stood in the halls of justice in the capital of my own State. 
 
 Before I ever set my foot in this State, one of the first inci¬ 
 dents which called my attention to the character of its people, 
 was the valedictory address of a veteran Statesman, who, 
 having finished his career, and resigned the cares of public life, 
 had come up, as he said, to lay his hones in Kentucky ; because 
 he knew that if they reposed in Kentucky earth, the foot of a 
 tyrant should never tread upon them. And I feel a strong 
 and abiding confidence, as I stand before you to day to debate 
 these vexed and exciting questions, that if there be any spot on 
 earth where the ashes of the dead or the rights of the living 
 are secure, it is on the soil and in the judicial tribunals of 
 Kentucky. 
 
 Let me then, as well as I may, overwhelmed by the kindness 
 and the cheers of this venerable assembly, approach the ques¬ 
 tion involved. And first : The statute of Kentucky of 18‘20, 
 under which this proceeding is had, is at variance with the 
 Constitution of the United States, and the law of Congress of 
 1793, and void. The statute runs thus : 
 
 “Sec. I. Re it enacted by the General Assembly of the Com¬ 
 monwealth of Kentucky , That in all cases where any negro 
 slave or slaves, have, or may hereafter run away from his, her 
 or their owner or owners, and take protection in any of the 
 United States, and the owner or owners of such slave or slaves, 
 by themselves, their agent or any other person with their 
 approbation, shall have removed, or shall hereafter remove any 
 such slave or slaves from any other State within the United 
 
16 
 
 States into this Commonwealth, and he, she or they have been, 
 or shall hereafter be indicted for the same, in any one of the 
 United States, and the Governor of said State shall demand 
 of the Governor of this State the person or persons so indicted, 
 or who may hereafter be indicted, to be delivered to him 
 agreeably to the Constitution of the United States and this 
 State, it shall be the duty of the Governor of this Common¬ 
 wealth, upon such requisition being made according to law, 
 to issue his warrant to the Sheriff of the county where such 
 supposed fugitive may reside, if he has a known place of resi¬ 
 dence, requiring him to take into custody such supposed fugi¬ 
 tive or fugitives ftom justice, as are named in such warrant and 
 indictment, and bring him, her or them before a Circuit Judge; 
 and if the Circuit Judge shall be of opinion that the person or 
 persons named in such warrant and indictment, are the owner 
 or owners of the slave or slaves named in such indictment, or 
 that he, she or they acted as the agent, or by the approbation 
 of the owner or owners of such slave or slaves, it shall be the. 
 duty of the Judge to discharge the person or persons taken 
 by virtue of said warrant, out of custody. 
 
 Sec. 2. Be it further enacted ., That if the -Judge shall be of 
 opinion that the person or persons taken into custody by virtue 
 of the Governor’s warrant, is not the owner or owners of the 
 slave or slaves, in the indictment found against him, her or 
 them, in any one of the United States for stealing and convey¬ 
 ing a slave or slaves which are not their own property ; or that 
 he, she or they did not act as the agent, or by the approbation 
 .of the owner or owners of such slave or slaves, then it shall 
 be the duty of the Judge to remand such person or persous 
 into custody again, to be dealt with according to the laws now 
 in force on that subject.” 
 
 Two questions of minor importance spring up under this 
 act. First, are these persons within the meaning and protec¬ 
 tion of the Statute, not being “indicted ” by a jury of inquest, 
 but only charged by the affidavits of private citizens ? and 
 secondly, was the statute intended to protect any but persons 
 having a legal residence in Kentucky ? I suggest these points 
 to the consideration of the Court without argument, and pro¬ 
 ceed to the main question—is the law constitutional ? It will 
 not be pretended that the Legislature of Kentucky have not a 
 right, that it is not their duty in some cases to pass laws in 
 aid of the Constitution, and for the purpose of directing the 
 mode in which its provisions shall be carried out. The pro¬ 
 vision of the constitution, Art. IV. Sec. 2. is,—“ A person 
 charged in any State with treason, felony or other crime. 
 
17 
 
 who shall flee from justice, and be found in another State, 
 shall, on the demand of the executive authority of the state 
 from which he fled, be delivered up, to be removed to the 
 State having jurisdiction of the crime.” 
 
 It was well remarked by my brother Morehcad, that the 
 delivering up of a fugitive from justice, under the constitution, 
 was an executive act. It is so, not because the constitution in 
 so many words designates the executive as the only proper de¬ 
 partment, for it does not. The act of congress of 1793 impo¬ 
 ses this duty on the executive. The mode, then of delivering up, 
 may, nay, ought to be directed by statute. But no statute 
 can be valid which thwarts the design of the constitution, 
 or in any way impedes the action or impairs the powers of 
 the executive demanding, or the executive delivering up, such 
 fugitives. Thus, as by the act of 1815, the statute may direct 
 that an issue be made before a judge of the court to ascer¬ 
 tain the identity of the persons claimed as fugitives. But 
 when the statute, as in the act of 1820, takes the case out of 
 the hands of the executive, for the purpose of trying issues 
 the result of which may defeat the ends of the constitution, it 
 is unconstitutional and void, and the court has no jurisdiction 
 under it. 
 
 The act of 1820 proposes to protect from the laws of the 
 demanding State, the owners of slaves, the agents of slave 
 owners, and persons acting by the approbation of slave 
 owners ; irrespective of the manner in which they proceed in 
 recovering the slave, or w'hat infractions of law they may 
 have been guilty of in recovering him. Surely the constitu¬ 
 tion never intended such a thing as this. 
 
 The clause in the constitution authorizing persons to whom 
 labor or service is due, to recover the persons held to such 
 labor or service, does not authorize the claimant to seize them 
 sans ceremonie , whenever they may be found—bind them hand 
 and foot, and drag them away without proof of ownership, 
 and in the teeth of the laws of the State whither they may 
 have escaped. It says, “ They shall be delivered up on claim 
 of the party to whom such service or labor may be due.’’ 
 “ Delivering up,” implies some act by authority, in the state 
 to which the fugitive had fled—not an act of physical force 
 
 3 
 
18 
 
 on the part of the claimant. And so the congress of 1793 
 understood the constitution. It is there provided, “ That, 
 when a person, held to labor in any of the United States, or 
 in either of the territories on the northwest or south of the 
 river Ohio, under the laws thereof, shall escape into any 
 other of the said states or territories, the person to whom such 
 labor or services may be due, his agent or attorney is here¬ 
 by empowered to seize or arrest such fugitive from labor, and 
 to take him or her before any judge of the circuit or district 
 courts of the United States, residing or being within the state, 
 or before any magistrate of a county, city, or town corporate 
 wherein such seizure or arrest shall be made ; and, upon proof 
 to the satisfaction of such judge or magistrate, either by oral 
 testimony or affidavit, taken before and certified by a magis¬ 
 trate of any such state or territory, that the person so seized 
 or arrested, doth, under the laws of the state or territory 
 from which he or she fled, owe service or labor to the person 
 claiming him or her, it shall be the duty of such judge or 
 magistrate to give a certificate thereof to such claimant, his 
 agent or attorney, which shall be sufficient warrant for remov¬ 
 ing the said fugitive from labor to the state or territory to 
 which he or she fled.” 
 
 Clearly this act contemplates a judicial examination as to the 
 right of the claimant. It contemplates no other mode of re¬ 
 claiming, and, as this act was passed in aid of the constitution, 
 by a congress, composed to a great extent of the same men, 
 who but five years before had framed the constitution ; it may 
 well be received as a fair exponent of that instrument. But 
 whatever protection the owner of the escaping slave may take 
 under the constitution, without such judicial examination as to 
 the ownership, clearly the agent can take none. Agents, in 
 such cases, are not known to the constitution, nor to the ordi¬ 
 nance of 1787. The statute of 1793 is tjie first enactment in 
 which agents are known ; and that act provides for such exam¬ 
 ination. 
 
 We in Ohio think such examination indispensable to the 
 cause of justice and humanity. We see nothing but endless 
 confusion, injustice and oppression growing out of the right to 
 drag men, women and children from their homes without such 
 
19 
 
 examination. We sec encouragement given to a horde of 
 pirates who infest the waters of the Ohio on both its banks, and 
 make man-catching a trade. 
 
 I do not say these wretches are Kentuckians. They are to 
 be found on both sides of the water, and do not deserve a 
 name or local habitation on either. They are the enemies of 
 the human race : without sympathy for any body, and entitled 
 to sympathy from nobody : men who will steal your slave Jrom 
 you to-day, and sell him to you to-morrow. 
 
 There is a distinguished character now in the Ohio peniten¬ 
 tiary, who made a fortune by first persuading slaves to run 
 away from their masters, quartering them on credulous black 
 people, (who, on account of their color, could not be witness¬ 
 es against him,) till a reward should be offered, and then con¬ 
 veying them back again for the reward. There are unfortunate¬ 
 ly others out of the penitentiary who follow the same calling* 
 until, if you were on the southern line of Ohio, you would 
 almost imagine you were on the slave coast of Africa. 
 
 About eight years ago a free colored woman, born in Ohio, 
 and residing in Brown county, in the absence of her husband, 
 was seized, and, without examination, or any forms of law 
 whatever, carried into Mason county, Kentucky, and lodged in 
 jail, under pretence that she was the slave of Arthur Fox, 
 High Sheriff of Mason county. Mr. Fox disclaimed owner¬ 
 ship in her ; and then she was retained in prison under pretence 
 (hat she was the slave of Mrs. Johns of New Orleans. Mrs. 
 Johns also disclaimed her ; and, then being in prison as a run¬ 
 away slave, she was subject to be sold at the end of fourteen 
 months for jail fees. She was only set at large by executive 
 interposition. I mention this case, not because it is a singular 
 one, but because I happen to be familiar with it, and because 
 it is a matter of record in both states. Cases far more aggra¬ 
 vated, of which no record exists, have often occurred. Men 
 believed to be freemen, have been knocked down with a colt 
 in the streets, in the night season, dragged into boats, and car¬ 
 ried—God only knows where. 
 
 To prevent such outrages, the legislature of Ohio have en¬ 
 acted two statutes against kidnapping. The one against seiz¬ 
 ing and carrying away free persons : the other against seizing 
 
20 
 
 and carrying away any person whatever, without a hearing. 
 These statutes of Ohio in no wise contravene the Constitution 
 of the United States or the act of 1793, nor embarrass the 
 owners of fugitive slaves in recovering their property. Ought 
 not these laws to be respected ? 
 
 Forbes and Armitage stand charged by affidavit under both 
 these statutes. We say Jerry was, by operation of law, a free 
 man, and that in seizing and carrying him forcibly away, 
 they were guilty of kidnapping. The act was perpetrated in 
 Ohio, by citizens of Ohio, and the tribunals of Ohio alone have 
 jurisdiction of the matter. They alone have a right to inquire 
 whether, under the laws of Ohio, such a state of facts exists, 
 as to bring these men within the law against kidnapping— 
 
 Again : we say that even if Jerry was a slave, Forbes and 
 Armitage had no right to carry him away without a fair hear¬ 
 ing under the act of congress of 1793 ; and that in so doing 
 they were guilty of kidnapping. And the act being perpetrated 
 in Ohio, wcclaim for the Ohio tribunals the sole right to try 
 the question, whether they did thus seize and carry him away 
 without trial, or upon a mock trial, or in any way in violation 
 of the laws of Ohio. 
 
 Is this claiming too much on the part of a sister in the glo¬ 
 rious confederacy ? Are not the rights and claims of a sister 
 state to be respected in a case like this ? Yet this act of 1820 
 steps in, as 1 insist, in violation of the Constitution and laws of 
 the United States, and takes the case out of the hands of the 
 executive and transfers it to the Judiciary, to try questions 
 which belong to the tribunals of Ohio alone. The executive 
 obeys implicitly the statute of 1820, and it is for this court to 
 determine, if your Honor should be satisfied that the statute 
 is void, whether it will take jurisdiction of the matter ; or simply 
 try the question of identity under the act of 1815. 
 
 If, however, it should be held that the statute of 1820 is 
 valid, then three questions of fact will arise. 
 
 1. Is Jerry a slave ? 
 
 2. Who is his owner ? 
 
 3. Did Forbes and Armitage act as the agents or with the 
 approbation of the owner ? 
 
 Upon the second question I do not propose to raise a doubt, 
 
21 
 
 for, if Jerry be a slave at all, it may be conceded that Mrs* 
 Long is the owner : for, either in her own right, or as the 
 executrix of her deceased husband, she represents twenty-six- 
 twenty-sevenths of him ; so that if he be the property of any 
 body, he is the property of Mrs. Long. 
 
 The third point may be conceded also, so far as Forbes is 
 concerned ; because it is in evidence that he acted under a 
 power of attorney, regularly executed by Mrs. Long. But 
 there was no power of attorney authorizing Armitage to act in 
 the premises ; nor is there any proof of express approbation of 
 his conduct on the part of Mrs. Long ; nor any other appro¬ 
 bation except what she may have bestowed on him after he 
 arrived at Frankfort with Jerry in his custody. If approbation 
 ex post facto , be contemplated by the act of 1820, I have not 
 another word to say on this point. But I believe the statute 
 means no such thing. 
 
 But the first is the leading and controlling question. Was 
 Jerry a slave at the time Forbes and Armitage seized him at 
 Columbus ? Because, if he were not a slave, neither Mrs. 
 Long nor any one else could be his owner ; and all authority 
 to act, based upon such ownership, falls to the ground ; and all 
 acts under such nugatory authority are without the protection 
 of the act. 
 
 This question, whether we will or not, leads to discussion of 
 the institution of slavery, as it has existed, and now exists in 
 the United States. 
 
 And first : Slavery is not recognized by the law of nature. 
 This broad self-evident truth is laid down in the Declaration of 
 Independence,—•“ that all men are created equal; that they arc 
 endowed by their Creator with certain unalienable rights ; that 
 amongst these are life, liberty and the pursuit of happiness.” 
 The great men who put forth this declaration did not mean to 
 say all men, except negroes , arc created equal, and endowed by 
 their Creator with the unalienable right of liberty . Nor did 
 they mean by this declaration to annul existing institutions at 
 variance with this great self-evident truth,—as slavery undoubt¬ 
 edly is,—but they meant then, and for all future time—for 
 themselves and their posterity—to set up this great, self-evident 
 moral truth, as the standard by which all law, and all civilization, 
 
22 
 
 should thereafter be tried ; not to unravel an evil already too 
 intimately interwoven with the warp of society to be removed 
 without destroying its texture ; but in the name of their 
 country, whose independence they sought to establish, and in 
 the name of the Creator, who bestowed these “ unalienable 
 rights,” to protest against its future progress. 
 
 This doctrine is in strict accordance with the original charter 
 given by God to our great ancestor, before sin or oppression 
 had marred the beauty and glory of his new creation. With 
 the archetypes of all that was beautiful and good before his 
 mighty eye, “ God said, Let us make man in our own image, 
 after our likeness ; and let them have dominion over the fish of 
 the sea, and over the fowls of she air, and over the cattle, and 
 over all the earth, and over every creeping thing that creepeth 
 upon the earth. So God created man in his own image ; in 
 the image of God created he him ; male and female created he 
 them.” As they stood thus before the bridal altar, glowing in 
 the charms of youthful love, with this immense dowry before 
 them, he pronounced upon them his parental benediction, and 
 delivered them the charter of their future estate: “ And God 
 blessed them, and said unto them, Be fruitful, and multiply, and 
 replenish the earth, and subdue it: and have dominion over 
 the fish of the sea, and over the fowl of the air, and over every 
 living thing that moveth upon the earth.” 
 
 All that was not conveyed to man by this charter, the Grant¬ 
 or reserved to himself. And that there might be no misunder¬ 
 standing, either as to the property granted, or names of the crea¬ 
 tures included in the grant, he gave him “ livery of seisin—’’ 
 brought the mighty menagerie “to Adam, to see what he 
 would call them ; and whatsoever Adam called every living 
 creature, that was the name thereof.” As if God had said to 
 man—Catch that bounding steed, and put thy brand on his crest, 
 and thy caparison on his back, and make him bear thee whither 
 thou shaft list. Seize that powerful ox, and, putting thy yoke 
 on his neck, compel him to plough the soil. Shear that shecp ? 
 and clothe thyself with his fleecy spoils. Snatch down the 
 eagle from the cloud, and draw up leviathan from the deep. 
 Make all living creatures in the heavens above, in tbe earth 
 beneath, and in the waters under the earth, thy slaves; for 
 
they are thine : but as for thee, and thy posterity by this 
 beautiful bride, I have stamped my own image upon you. Ye 
 are mine! Thus stood the meum and tuum of the pristine 
 world. 
 
 It is not pretended that the divine law of property, thus laid 
 down, has been always respected ; or that slavery has not 
 existed since a very early period of history. Alas ! who can 
 look around him on the wrongs and oppressions which wring the 
 hearts of innocent millions without, or feel the workings of ten 
 thousand bitter pangs within, without acknowdcdging that soci¬ 
 ety has been sadly bruised and disjointed by the fall of man ! 
 The first man that was born of woman, murdered the second ; 
 and thus on, depravity, disorder, and oppression spread over 
 the whole inhabited earth. We see wars arise, and prisoners 
 of war sold into slavery ; nay, wdiole nations carried away 
 captive, and sold into bondage as a punishment for their crimes, 
 the nations thus punishing them frequently not less criminal 
 than themselves. We see depravity and wickedness, by Divine 
 permission, working out their ow n penalty and their own cure : 
 but this does not altar the Divine law. Still property in man 
 is contrary to the law of nature. It exists, and is tolerated, in 
 society like some hereditary disease ; not as a part of man’s 
 original constitution, nor as his constitution ought to be, but 
 superinduced by remote causes at first, and now too deeply 
 fixed to be amputated or rooted out, w ithout inconvenience, 
 pain, or loss of life. It was with reference to this great prin¬ 
 ciple, that, although slavery existed in some form or other, as a 
 local institution in almost all nations, and in Rome herself, it 
 was one of the laws of the twelve tables of Rome, that when¬ 
 ever there was a question between liberty and slavery, the 
 presumption should be on the side of liberty. 
 
 But again. Property in human beings is not only contrary 
 to the law of nature, but is contrary to the law of nations.— 
 There is no existing obligation, moral, legal, or international, 
 on the part of one state, to deliver up fugitive slaves from 
 another state. I know that a dictum from the court in the 
 Amistad case* has been often referred to, to establish a differ- 
 
 * 15 Peters’ R., 518. 
 
24 
 
 ent rule, but that dictum is clearly not to the point. In that case 
 the captive negroes were claimed, not upon any principle of 
 international law, but under the existing compact of 1795, 
 between Spain and the United States, for the mutual delivery 
 of property in certain cases. The case did not require a 
 decision under the treaty, because the negroes in controversy 
 never had been lawfully slaves. 
 
 1 say it is contrary to the law of nations, not because it is so 
 written in the black-letter books, but because, for a quarter of 
 a century, the traffic in slaves has been condemned by all the 
 civilized nations of Europe and America. Because the min¬ 
 isters of the principal European powers, in the Congress of 
 Vienna in 1815, solemnly declared in the face of Europe and 
 the world, “ that the African Slave trade had been re garded by 
 just and enlightened men in all ages, as repugnant to the prin¬ 
 ciples of humanity and universal morality, and that the public 
 voice of all civilized countries, demanded that it should be 
 suppressed ; and that the universal abolition of it was conform, 
 able to the spirit of the age, and the generous principles of the 
 allied powers.” Because, as early as 1821, there was not a 
 flag of any European States, which could legally cover this 
 traffic, to the north of the Equator. Because, by the act of 
 Congress of 1820, and by the Act of the British Parliament 
 of 1824, it is declared to be piracy, and punishable with death. 
 
 It will be asked how these acts can aflect slavery as a domes¬ 
 tic institution. I answer that they in no wise affect it, so long 
 as it is domestic and stays at home. But they stamp upon it 
 the character of a domestic, a local institution. They forbid 
 it to travel on the high seas ; and the same principle of law, ad¬ 
 judged by the judicial tribunals of the several states, forbid it 
 to travel by land. 
 
 Slavery is then strictly local . About this there can be but 
 one opinion amongst those who have examined the subject. In 
 most of the British Colonies, til! recently, slavery has existed 
 from time immemorial. We are to-day indebted to Great 
 Britain for the institution amongst us. It was one of the 
 counts on which Mr. Jefferson in his original draft of the Dec¬ 
 laration of Independence, indicted the British King—that “ he 
 had waged cruel war against human nature itself, violating its 
 
25 
 
 most sacred rights of life and liberty, in the persons of a 
 distant people who never offended him—captivating and 
 carrying them into slavery in another hemisphere, or to incur 
 miserable death in their transportation thither. This piratical 
 warfare, the opprobrium of infidel powers, is the warfare of 
 the Christian King of Great Britain, determined to keep open 
 a market where men should be bought and sold : he had pros¬ 
 tituted his negative for suppressing every legislative attempt to 
 prohibit or to restrain this execrable commerce.”* Yet, tho’ 
 slavery has been thus tolerated as a local institution in the 
 provinces of Great Britain, it has been justly the boast of 
 every Englishman, in the eloquent language of Curran, “ that 
 the spirit of the British law makes liberty commensurate with, 
 and inseparable from the British soil”—that it “ proclaims, even 
 to the stranger and sojourner, the moment he sets his foot upon 
 British earth, that the ground on which he treads is holy, and 
 consecrated by the genius of universal emancitation ! No 
 matter in what language his doom may have been pronounced ; 
 no matter what complexion incompatible with freedom , an 
 Indian or an African sun may have burnt upon him ; no matter 
 in what disastrous battle his liberty may have been cloven 
 down ; no matter with what solemnities he may have been 
 devoted upon the altar of slavery ; the first moment he touches 
 the sacred soil of Britain, the altar and the god sink together 
 in the dust ; his soul walks abroad in her own majesty ; his 
 body swells beyond the measure of his chains, that burst from 
 around him, and he stands redeemed, regenerated, and disen¬ 
 thralled, by the irresistable genius of universal emancipation.” 
 
 Such, too, is the common law of France. Property in hu¬ 
 man beings is strictly local, and cannot exist for a moment, 
 after the slave passes the territorial limits into a state where 
 slavery is not tolerated. And this principle of law in France 
 is clearly recognized by the Courts of Louisiana, where this 
 peculiar institution is far dearer to the people than it is to the 
 people of Kentucky. In the case of Maria Louisa vs. Mariat 
 and others,! the defendants had carried a colored girl, admit* 
 
 * Jefforson’s Works, Vol- IV 
 t 8 Louisiana Rep. 475. 
 
ted on all hands to have been a slave in Louisiana, into France, 
 where slavery is not tolerated, and brought her back into Loui¬ 
 siana as a slave ; Justice Matthews holds the following lan¬ 
 guage : 44 The question is, whether the fact of her having been 
 taken to that kingdom by her owners, where slavery or invol¬ 
 untary servitude is not tolerated, operated on the condition of 
 the slave so as to produce an immediate emancipation. That 
 such is the benign and liberal effect of the laws and customs 
 of that state, is proven by two witnesses of unimpeachable 
 credibility. This fact was submitted to the consideration of 
 the jury who tried the cause under the charge of the judge, 
 which we consider to be correct, and was found in favor of the 
 party whose liberty is claimed. Being free for one moment 
 in France, it was not in the power of her former owner to 
 reduce her again to slavery.” 
 
 This principle has been held in our own country in every 
 instance where the nature of the case made it necessary or 
 proper for a court to express an opinion. Without multiplying 
 cases to prove a position that will hardly be doubted, in the 
 case of Jones vs Vanzandt,* Justice McLean says ; 44 Slavery 
 is local in its character. It depends on the municipal law of 
 the state where it is established. And if a person held in sla' 
 very, go beyond the jurisdiction where he is so held, and into 
 another sovereignty where slavery is not tolerated, he becomes 
 free. And this would be the law of these states, had the Con¬ 
 stitution of the United States adopted no regulation on the 
 subject.” 
 
 44 Recaption,” says the judge, 44 has been named as a common 
 law remedy. But this remedy could not be pursued beyond 
 the sovereignty where slavery exists, and into another jurisdic¬ 
 tion which had entered into no compact to surrender the fugi¬ 
 tives. There is no general principle in the law of nations, 
 which would require a surrender in such a case.” 
 
 We have seen that by the law of nature, by the law of na¬ 
 tions, by the common law of England, by the common law of 
 France, and by the common law of our own country, slavery 
 is strictly local. That property in slaves, unlike that in any- 
 
 2 McLean’s Rep., 596 
 
27 
 
 thing else, is incapable of crossing the territorial line, from one 
 state to another. Within the territorial limits of a state, men, 
 women and children may be bought and sold like “ beasts of 
 the plough,” and property in them may be cherished and pro¬ 
 tected by the municipal laws of the state. They may be sub¬ 
 jected to the rule of task-masters, with power to command—to 
 scourge—to exact their sweat and labor. They may groan under 
 their burdens as the Hebrew vassals groaned under Egyptian 
 bondage—without any human ear to hear their complaint, or 
 any human law to relieve their sufferings. But on the territo¬ 
 rial line separating one state from another, “ the genius of uni¬ 
 versal Emancipation,” stands like the spirit of Omnipotence 
 on the waters of the Red Sea, to let the slave pass over ; to 
 intercept the master’s pursuit ; and to overthrow and overwhelm 
 the prancing horse, the rattling chariot, and all the pomp, and 
 all the pride, and all the power of pursuing forces. 
 
 What then is there to change or limit this great pervading 
 principle of liberty and law ? The only law varrying this 
 great principle, in its application to American institutions, is 
 that found, 1. In the ordinance of 1787 for the government 
 of the Northwestern Territory ; 2. In the Constitution of the 
 United States ; 3. In the act of Congress of 1793. For this 
 law, whenever it occurs, I shall insist on a strict and literal 
 construction. 
 
 The ordinance of 1787 is two-fold. The first part municipal 
 and temporary, the second general and perpetual. The former 
 for the government of the territory only, and to remain in force 
 until the other laws should be established, and no longer : the 
 latter unalterable and inherent in the bond of confederacy 
 between the states. Or, to use its own broad, deep, and unmis- 
 takeable language : “It is hereby ordained by the authority 
 aforesaid, that the following articles shall be considered as arti¬ 
 cles of Compact' between the original states and the people 
 and stales of said territory, and forever unalterable except by 
 common consent, to wit:”—And here follow six articles of 
 older law than the Constitution of the United States, The 
 Constitution of Kentucky, or the Constitution of Ohio, and 
 paramount to them all. The sixth of these was intended for¬ 
 ever to prohibit slavery northwest of the Ohio river, without 
 
 4 
 
28 
 
 disturbing rights already acquired in this species of property 
 in the old states. “ There shall be neither slavery nor involun¬ 
 tary servitude in the said territory, otherwise than in the pun¬ 
 ishment of crimes, whereof the party shall have been 
 duly convicted : provided always that any person escaping into 
 the same, from whom labor and service is lawfully claimed in 
 any of the original slates, such fugitive may be lawfully re¬ 
 claimed, and conveyed to the person claiming his or her labor 
 or service as aforesaid.” 
 
 The general rule laid down in that document, is, “ There 
 shall be neither slavery nor involuntary servitude in the said 
 territory, otherwise than in the punishment of crimes, whereof 
 the party shall have been duly convicted.” The restriction to 
 this general rule, is, “ Provided always, that any person esca. 
 ping into the same, from whom service or labor 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 aforesaid.” This general rule, securing free¬ 
 dom, cannot be annulled by any state, or United States con¬ 
 vention : and lest it should be overlooked or forgotten, it is 
 copied verbatim into the constitution of Ohio : There shall be 
 neither slavery nor involuntary servitude in this state, other¬ 
 wise than for the punishment of crimes, whereof the party 
 shall have been duly convicted.” The restrictive clause, tho’ 
 not so literally copied, is preserved with equal care, in the con_ 
 stitution of the United States : “ No person held to service 
 or labor in one shite, 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 the claim of the party to whom such service or labor 
 may be due.” But neither the constitution of the United 
 States, nor that of Ohio, pretends to alter, enlarge, or diminish 
 the ordinance of 1787. It is still in full force, and paramount 
 to both. 
 
 Mark you then their peculiar language. “ Escaping into, 
 are the words employed in each and all of these documents. 
 “ Escaping ” implies a voluntary act of the slave, contrary to 
 the will of his master. If he thus escape , he drags his chain 
 with him. He may flee from state to state all over the Union, 
 
29 
 
 and into what state soever he may fly, where the ordinance 
 of 1787, or the constitution of the United States is in force—■ 
 
 “He drags at each remove a lengthened chain,” but the mo¬ 
 ment he sets his foot on the soil of the Northwestern Territory, 
 by any other means than by his own voluntary escape, he 
 becomes ipso facto free. Every lock, and bolt and link of his 
 chain melts into thin air ; and his emancipated limbs, charmed 
 by the spirit of freedom, are proof against all future manacles. 
 
 These restrictive clauses, by all known and universal rules 
 of construction, must be strictly construed. That in the ordi¬ 
 nance, on which both the others are founded, should be strictly 
 construed, because it is a proviso, a saving clause, limiting and 
 restricting the general rule of the law. Freedom is the rule ; 
 slavery in a certain case, is the exception. The body of the 
 law protests forever against slavery and involuntary servitude. 
 The saving clause provides that escaping slaves may be reclaim¬ 
 ed. The great object of the law is first to be considered, 
 and if the exception were wholly repugnant to the law, it 
 would be void. It is not wholly repugnant to the law, but it is 
 restrictive of its ends, and must be understood literally—to 
 mean what it says, and no more. 
 
 But there are still higher reasons for the strict construction 
 of these clauses. They are repugnant to the law of nature, by 
 which all men are created equal, and endowed with the unali¬ 
 enable right of liberty. They are repugnant to the law of 
 nations, which recognizes no right on the part of a slave owner 
 to pursue an escaping slave beyond the territorial limits of his 
 own state, and which makes him free the moment he sets his 
 foot upon the soil of a state where slavery does not exist.— 
 They are repugnant to the common law of England, from 
 whence we derive our civil jurisprudence, and the common 
 law of our own country, which does not recognize property in 
 human beings. More than all, they are restrictive of human 
 liberty, and must be strictly construed—as much so as criminal 
 statutes, under which the life and liberty of a citizen may be 
 taken away. 
 
 Hitherto we have discussed abstract principles, applicable 
 alike to every case. Let us for a moment look at what may be 
 called Jerry's peculiar case ; and see whether he is a slave or a 
 
30 
 
 free man. lie has been twice in Ohio ; and it is remarkable 
 that he did not “ escape ” thither in either case. He has re¬ 
 turned twice to Kentucky, without his own volition in either 
 instance. The second time he visited Ohio, it is not pretended 
 that the present claimant, Mrs. Long, did not give him permission 
 to go. He asked permission to return for his clothes, and she 
 granted it. Where ? To the place where he had served All- 
 gaier. Where was that ? At Cincinnati, where Mrs, Long 
 had learned that Allgaier had taken him, and to which she 
 directed her letter, threatening him with a law-suit if he did 
 not bring Jerry back. At this time, then, he went by permis¬ 
 sion of his mistress ; as much so as if she had come herself 
 with Jerry attending on her as a servant. He went by her di¬ 
 rection on her business, to a state where slavery is not tolera- 
 ated ; and if, indeed, we can suppose he was a slave after his 
 return with Allgaier, this last act made him free. In the case 
 of Ohio vs. Hoppess,* tried on habeas corpus before Judge 
 Read of the Supreme Court of Ohio ; this doctrine was clearly 
 laid down. And although the facts of the case, in his opinion 
 did not authorize the discharge of Watson from the defendant’s 
 custody, the Judge lays down the doctrine thus : “ If a roaster 
 bring his slave into the state of Ohio, he loses all power over 
 him. The relation of master and slave is strictly territorial. 
 If the master take his slave beyond the influence of the law 
 which creates the relation, it fails—there is nothing to support 
 it—and they stand a6 man and man. The slave is free by the 
 laws of the state to which he has been brought by the master, 
 and there is no law authorizing the master to force him back 
 to the state which recognizes and enforces the relation of 
 master and slave.” 
 
 The same doctrine is laid down by Justice McLean in the 
 Circuit Court of the United States, in the case of Jones vs. 
 Vanzandt,! which was an action brought under the act of 
 Congress, by the master, against a citizen of Ohio, for aiding 
 fugitive slaves to escape from labor, &c. The Judge holds 
 this clear languge : “Now if the slaves left the service of the 
 plaintiff, with his consent, or in any other mode, except as 
 fugitives from labor, and come into the possession of the de- 
 
 * Western Law Journal, 270. t2 McLean’s R. 500. 
 
31 
 
 fendent, as alleged, the plaintiff has no right to their serv ices, 
 and still less, to recover from the defendent their value.” 
 
 So, too, the rule was held by Chief Justice Shaw of Massa" 
 chusetts, in the case of Massachusetts vs. Avis.* In this case 
 the slave Med was carried into Massachusetts for a very tem¬ 
 porary purpose indeed—merely to wait on her mistress while 
 on a visit to her father and friends in Boston, and then return 
 again to New Orleans. The opinion of the Judge is a very 
 elaborate one, and is in itself a valuable digest of the law of 
 slavery ; and after examining numerous authorities from differ¬ 
 ent states, he comes to this conclusion : The “constitution and 
 laws of the United States, then, are confined to cases of slaves 
 escaping from other states, and coming within the limits of this 
 state without the consent and against the will of their masters, 
 and cannot by any sound construction, extend to a case where 
 the slave does not escape, and does not come within the limits 
 of this state against the will of his master, but by his own act 
 and permission. This provision is to be construed according to 
 its plain terms and import, and cannot be extended beyond 
 this, and where the case is not that of an escape, the general 
 rule shall have its effect. It is upon these grounds, we are of 
 opinion, thrt the owner of a slave in another state, where slave¬ 
 ry is warranted by law, voluntarily bringing such slave into 
 this state, has no authority to detain him against his will, or to 
 carry him out of the state against his consent for the purpose 
 of being held in slavery.” 
 
 In support of this doctrine, Chief Justice Shaw cites two 
 cases amongst others, which I beg leave to refer to, not because 
 they are stronger than fifty others which might be cited, but 
 because they arc the decisions of one of the best and purest ol 
 the Judges of the United States court, himself born and educa¬ 
 ted in a slave state, and a slave-holder. I refer to the decisions 
 of-Justice Washington, in the cases of Butler vs. IIoppcr,t and 
 Ex parle Simmons.J In the former of these cases it was held 
 in terms, that “ the provision of the constitution does not ex' 
 tend to the case of a slave voluntarily carried by his master 
 into another state, and there leaving him under the protection of 
 some law declaring him free.” This was a case somewhat pc" 
 ~ *La»v of Slavery, 357. tUWash. C. C. Rep. 396. :1 Wash. C.C. Rep. 49^' 
 
32 
 
 culiar, as the master claimed the benefit of a law of Pennsyl¬ 
 vania, allowing members of Congress and sojurners to retain 
 their domestic slaves ; both of which rights he had forfeited ; 
 the one by ceasing to be a member of congress, and the other 
 by becoming a resident. But the case is an authority to this 
 point ; that the claimant of a slave, to avail himself of the 
 provisions of the constitution of the United States, must bring 
 himself within their plain and obvious meaning, that they wil^ 
 not be extended by construction, and that the clause tn the 
 constitution is confined to the case of a slave escaping from one 
 state and fleeing into another. The latter case was an appli¬ 
 cation under the act of congress of 1793, for a certificate o^ 
 ownership, to enable the master to carry away a slave ; and 
 the same Judge held, “ that both the constitution and the 
 laws of the United States apply only to fugitives, escaping 
 from one state and fleeing into another, and not to the case of 
 a slave voluntarily brought by the master.” In the case at 
 bar, the slave neither escaped from one state, nor fed into 
 another. 
 
 What has been said in relation to the second time Jerry 
 went to Ohio, applies with equal force to the first. Perhaps 
 with greater force in Kentucky. 
 
 I am well aware that it has been held by the Court of Ap¬ 
 peals of Kentucky, in the case of Graham vs. Strader, and in 
 some older cases, that for the temporary purpose of a mere so¬ 
 journer, a slave holder may lake his slave within the North¬ 
 western Territory, without forfeiting his property. But there 
 is no case in the books in Kentucky or elsewhere, that I have 
 met with, where it has been decided that a man actually do¬ 
 miciled in Ohio, as Allgaier was, may keep a slave at hard 
 labor for six months, without an infraction of the constitution 
 or the ordinance, which forever inhibit “slavery or involuntary 
 servitude,” within the territory into which he has voluntarily 
 gone. Surely no judicial tribunal has attempted to extend the 
 municipal law of Kentucky, by which alone slavery exists 
 here, into Ohio. 
 
 I have -said that slavery is strictly local, and that its limits 
 are territorial. Then on every principle of state sovereignty, 
 an obligation arises on both sides to let each other, and each 
 
33 
 
 others local and domestic institutions above. “ Hands off, ” is 
 the principle. The people of Ohio have no right to say, you 
 shall, or shall not, do this or that with your slaves. If it be a 
 sin against Heaven, upon you and your children be the conse¬ 
 quences. If it be a political evil, you and your children shall 
 be the sufferers. But as for us, we have no right, no power, — 
 
 I trust no disposition to intermeddle. But while we thus dis¬ 
 claim all right to intermeddle with the institutions of Kentucky, 
 we insist upon the mutuality of the obligation. Slavery may 
 not come upon the soil of Ohio, or even leave its footprint in 
 the sand above the low water mark. The ordinance of 1787, 
 like the blessing of a patron saint, infused into the soil of Ohio 
 an incapacity to support the footsteps of any other than a free 
 man. The name of Nathan Dane is as dear to us as the name 
 of Daniel Boone is to Kentucky. We are not privileged to 
 inter his bones and erect his monument as our Capital. * But 
 he has a more enduring monument in the results of his far-seeing 
 policy. This ordinance has clothed thousands of fields with 
 waving corn; covered thousands of hills with bleating sheep; 
 set in motion a thousand plashing water-wheels, and ten thou¬ 
 sand busy spindles; erected thousands of free and public schools; 
 and made thousands of hardy intelligent peasants, as with their 
 sunburnt sons at their heels, each tills his hundred and sixty 
 acres of land, exult in the thought that there is no state like the 
 state of Ohio. Yet if the doctrine should be established, that 
 this ordinance is only to affect the rights of those who reside 
 within the Northwestern Territory, and that those who reside 
 out of it, though parties to the compact, are not bound by it, 
 but may carry their slaves with them, when and where they 
 please, to work an hour, a day, a week, a month, or six months; 
 then this ordinance the poor man’s shield, the free man’s boast, 
 the inspiring soul of the North-Western Territory, is frail and 
 worthless as a withered leaf driven before the autumnal winds. 
 
 Let us take a plain case, and see whether the domicile o' 
 the master can affect the question. A rich slave-holder in 
 Kentucky, opposite Cincinnati, quarters on the bank of the 
 
 ♦ The remains of Daniel Boone have recently been removed from M.ssouri and 
 deposited in a new cemetery at Frankfort, where an elegant monument is to be 
 erected to his memory. 
 
 5 
 
river one thousand able-bodied slaves, and furnishing each of 
 them with a horse and dray, sends them over every morning at 
 sunrise to compete with the free laborers of Cincinnati, requi¬ 
 ring that each shall be in quarter in Kentucky, before the sun 
 goes down, lest any one might suspect that either the slave or 
 his master was domiciled in Ohio. May he exercise this 
 privilege? By the constitution of the United States, “ The 
 citizens of each state shall be entitled to all the privileges and 
 immunities of citizens in the several states.” Thus, the life, 
 the liberty, the character, the property, of every Kentuckian 
 who comes on the soil of Ohio, are as sacred, not merely to the 
 law, but to the heart® of the Ohio people, as if they were their 
 owm. But may a citizen of Kentucky, merely because he is 
 domiciled in Kentucky, exercise in Ohio, a privilege denied by 
 the ordinance, and by the constitution of Ohio, to her own 
 citizens? And is the law of “ escaping slaves ” applicable to 
 each of these 1000 negroes, every evening when he returns to 
 his quarter? If so, then slavery and involuntary servitude may 
 be superinduced on Ohio by any citizen of Kentucky, or by any 
 citizen of Ohio, who shall choose to build his house south-west 
 of the Ohio River, in spite of all the ordinances and constitu¬ 
 tions in the universe. 
 
 Let me ask you, sir, what was the condition of Jerry during 
 the six months he worked in Ohio ? Was he a free man or 
 a slave ? “ He was a fugitive slave,” some gentleman on my 
 
 left suggests, and I thank him for the suggestion. And pray, 
 sir, what is a fugitive slave ? The ordinance of 1787, the con¬ 
 stitution of the United States, and the act of congress of 1793, 
 all define it in the same way. A person owing labor or service, 
 &c., escaping into ” the territory. The word “ fugitive” does 
 not occur ; the less classical but more pregnant word “ esca¬ 
 ping ” does. Did Jerry come into Ohio as an “ escaping ” 
 slave ? He no more “ escaped ” into Ohio with Allgaier, than 
 he “ escaped” out of it with Forbes and Armitage. Can any 
 man, bound hand and foot, and without his own volition car¬ 
 ried across a river into another state be said to “ escape ?”— 
 Jerry, to be sure, was not literally bound hand and foot ; and 
 to the observation of one who did not know his condition, 
 seemed to have all the attributes of a man. But not so. The 
 
fetters of the law were upon him. He did not possess, in his 
 own right, one attribute of a man. He was a slave—the slave 
 of Allgaier, who for the year had as complete dominion over him 
 as Mrs. Bjown could have had. It was his duty to feed, clothe, 
 house and physic him. It was his privilege to command, gov¬ 
 ern and punish him. He said to him, Go, and he went ; come, 
 and he came ; Do this, and he did it. Jerry’s heart might 
 have belonged to some one else, but his hands were the hands 
 of Allgaier; his feet were the feet of Allgaier ; his will was 
 the will of Allgaier ; and by the will of Allgaier, and not his 
 own, he was brought to Ohio. Call you this an escaping slave? 
 
 Again I ask your honor, what was the condition of Jerry 
 during the six months he served Allgaier in Ohio ? He went 
 to Ohio a mere chattel, without a hand, a foot, a will, or an 
 action of his own ; and could in no sense be considered an 
 escaping slave. He could not be a slave in Ohio, other than 
 an escaping one, else the ordinance of 1787 is perfectly nuga¬ 
 tory. If Jerry was not in a state of freedom during this six 
 months, he was in a state of profound mystery. I hope one 
 day to see with better eyes, and hear with better ears, but 
 while I remain in this muddy vesture of flesh and blood, I shall 
 never be able to penetrate this mystery. 
 
 I have heard the tine spun distinction taken, between the 
 right to be free, and freedom itself. But however much force 
 may be in this distinction in a state where a colored man is 
 prima facia a slave, and where persons are sometimes wrongful¬ 
 ly kept in slavery, who by law are entitled |to be free, it can 
 have no force whatever where a slave, without “escaping,” 
 comes into a state where every man not a criminal, is not only 
 prima facia but absolutely free. This distinction was repudi¬ 
 ated in the case of Lunsford vs. Coquillon,* and the rule held 
 that in a free state whosoever was entitled to freedom, was in 
 fact already free. Being free, then in the language of Justice 
 Matthews, before cited, “ but for a moment,” he could never 
 again be reduced to bondage. Never ! Not even by his own 
 voluntary act, for the right of liberty being unalienable, he 
 could neither sell it, nor give it away, nor in any other way 
 
 14 Matthews Rep. 401. 
 
36 
 
 forfeit it, except by the commission of a crime. The runaway 
 slave may return to his master and remain a slave, because by 
 “ escaping ” he does not change his condition, and he never 
 was free : but the man once made free by operation of law, 
 can never again become a slave. 
 
 But it is useless with the existing state of facts, to moot the 
 question whether a freed slave may voluntarily alienate his 
 freedom, and go back into slavery ; because, in this case, Jerry 
 came as he went, not by his own will, but by the will of All- 
 gaier. And in thus carrying a free man into slavery, Allgaier 
 committed an act of tortious violence, which could in no way 
 affect the rights of Jerry. 1 say his act was tortious, although 
 no physical violence may have been offered ; because it matters 
 nothing whether an act of oppression be perpetrated under 
 pretence of authority where none exists, or by physical violence 
 without such pretence. Jerry was a free man without knowing 
 it. Allgaier enslaved his mind—riveted on his imagination the 
 chains of the law—and thus imprisoned and manacled, carried 
 him back and delivered him to his former owner. This could 
 in no wise be considered the voluntary act of Jerry, nor so con¬ 
 strued as to affect his rights. And so the rule was held by 
 Justice Martin of Louisiana, in the case of Lunsford vs. 
 Coquillon, just cited. So, too, the rule was recently held by 
 Justice McLean, in the Circuit Court of the United States in 
 Indiana, in a case not yet officially reported, where the master 
 had brought his slave from Kentucky within the limits of a 
 free state, and taking the alarm, lest they should be induced 
 to leave him, took them, for greater security, to the state of 
 Missouri. In this case the judge held that it was not neces¬ 
 sary to pass upon the question whether the slave might waive 
 his right of freedom after it had accrued, and again return 
 into slavery, because in that case they passed over to Missouri 
 in custody of the master, as slaves. That the master was 
 guilty of a tort in thus taking them over, and that their right s 
 could not be affected by this act. On this point I need not 
 multiply cases. The books are full of them; and if they 
 were all blank on the subject, common sense would speak out 
 and say that a slave, while in the custody of his master has no 
 will. This is the great point of distinction between a free man 
 
37 
 
 and a slave. The free man has a will ; the slave has none. 
 Then whatever rights Jerry may have acquired, in going to 
 Ohio by the will of his master, came with him back to Ken. 
 tucky, because they could not be taken from him by the act 
 of Allgaier. 
 
 But we are met with the fact that Allgaier was a bailee 
 merely. Agreed. He was a bailee for hire for the term of 
 one year, and his dominion over Jerry, though complete while 
 it lasted, was of limited duration. But a bailee can no more 
 establish slavery in the Northwestern Territory, by carrying 
 slaves into it and working them, than their lawful owner can. 
 The prohibition is broad and comprehensive. “ There shall 
 be neither slavery nor involuntary servitude within the Terri¬ 
 tory,”—without any exception in favor of bailees or bailors. 
 There shall be no slave labor in the Territory, and no person 
 reclaimed as a slave, unless he shall have escaped into it. 
 
 We are told that it would be a great hardship if Allgaier, by 
 his faithlessness, should be permitted to deprive this lady of her 
 property. If I remember rightly, this Allgaier was a gambler 
 by profession; and if so, it was his trade to rob poor women of 
 their property, and poor children of their bread, and leave them 
 without remedy. But Mrs. Long was not left without remedy. 
 She had her right of action against Allgaier for the loss of 
 Jerry’s services; and that was her only remedy. This remedy 
 she seems to have understood well enough, when she wrote a 
 letter to Allgaier at Cincinnati, threatening to sue him if he did 
 not immediately bring back her slave. 
 
 It is said, indeed, by lawyers, that a bailee for hire cannot so 
 dispose of the bailor’s property as to hazard the rights of the 
 bailor; and that so far as the rights of the lawful owner are 
 concerned, there is no difference between a breach of trust and 
 a larceny. And applying this principle of law to the present 
 case, Allgaier’s act, in taking Jerry to Ohio, contrary to the 
 injunction of his mistress, no more affects her rights than if he 
 had been stolen, or taken away from her by force. This 
 principle of law is doubtless correct in relation to property in 
 ordinary chattels, but can have no application to property in 
 human beings. If Jerry had been a horse or any other animal, 
 in which, by the law of nature, by the common law, and by the 
 
38 
 
 usage of all civilized nations, property exists, Allgaier could not 
 have so disposed of him, not even by the shrewdest slight of the 
 gambling craft, hut that his lawful owner could have taken him 
 by replevin, or some other legal process, wherever she found 
 him. But there is this wide distinction between property in 
 animals and property in man: property in animals is sanctioned 
 by the law of nature, and the common law:, is universal and 
 binding every where: property in man is contrary to the law of 
 nature, contrary to the common law, strictly local, and binding 
 only within the territorial limits where slavery exists by force of 
 the municipal law. The legal notion of personal property is, 
 that it is that sort of property which may attend upon a man’s 
 person wherever he goes, in contradistinction to that which is 
 fixed and immovable. And upon this hypothesis we say, a 
 man’s property acquired in one state, by the comity of nations, is 
 his property in every other stat.e. Admit this principle in regard 
 to property in men, and whither will it lead you? or, whither 
 will it not drive you? A man acquires property in a slave in 
 Kentucky, where, by the municipal law, such property is recog¬ 
 nised: it is at his option to establish slavery in every other state 
 in the union, wherever he may choose to travel, for the slave, 
 being personal property, may attend on his person wherever he 
 goes. But how shall he keep up this relation of master and slave, 
 where, by the organic law of the state, and by a compact of still 
 higher obligation, to which he himself is a party, it is declared 
 that there shall be neither slavery nor involuntary servitude? 
 The moment he crosses the territorial line, this relation ceases, 
 because there is no law to support it. And with it perish all the 
 rules of law regulating property in men, and all the ordinary 
 remedies by which such property is guarded. No such property 
 exists in Ohio. No action of replevin, nor any other action, 
 woud lie for the recovery of such property. The only instance 
 in which one human being can lay hands on another, and claim 
 him as his own, is where a person lawfully held to labor or ser¬ 
 vice in one of the original states, shall escape into the State of Ohio. 
 
 This brings us back to the old question : Did Jerry “ escape 
 into ” Ohio. I think I have shown conclusively from the facts, 
 that when Jerry left the state of Kentucky, where he was law¬ 
 fully held to labor or service, he was a slave without volition ; 
 
39 * 
 
 that he was subject to the will of one having absolute control 
 over him ; that he went into Ohio in obedience to the will of 
 a master who had the power to command him, to whip him, to 
 fetter him, and to carry him when and where he listed ; and 
 that under the circumstances, he could be considered in no 
 sense an escaping slave. 
 
 Jerry Finney, then, at the time of his seizure by Forbes and- 
 Armitagc, was by operation of law, a free man of Ohio. Dis¬ 
 franchised, indeed, of the right to hold office, the right to 
 vote, the right to testify : but so far as it regarded the right o^ 
 any one to claim his labor, or restrain his liberty, he was as 
 free as any of us. No one had a right to pursue him, either 
 in person, or by agent ; and these men by assuming such 
 agency, and carrying him away, have placed themselves within 
 the law of kidnappers, and fugitives from justice, and without 
 the protection of the laws of Kentucky. 
 
 I have now urged all the points which I consider material 
 to the issue, and laid down, as fairly as my limited time for 
 investigation, and my feeble abilities, would allow, what I be¬ 
 lieve to be the law of the case, both as it regards the organic 
 law of the nation, and the municipal laws of Kentucky and 
 Ohio—what is held to be the law in Ohio—what is held to be 
 the law in Louisiana and other states, where slavery exists— 
 and what I believe to be the common law of all Christian and 
 civilized nations. 
 
 1. The Kentucky statute of 1820 is at variance with the 
 Constitution of the United States and the law of Congress of 
 1793 and void. 
 
 2. If the statute of 1820 be void, the court has jurisdiction 
 only of the question of identity under the statute of 1815. 
 
 If the statute of 1820 be valid, and the court has jurisdic¬ 
 tion, then three questions of fact arc involved. 
 
 1. Is Jerry a slave and the property of any one ? 
 
 2. Who is his owner ? 
 
 3. Did Forbes and Armitage act as the agents, or with the 
 approbation of the owner ? 
 
 The second point is conceded, for if Jerry be a slave, Mrs. 
 Long representing in her own right, and as* administratrix of 
 her deceased husband, 2G-27ths of Jerry, for the purposes of 
 this case may be considered the owner. 
 
 The third point is conceded also, as to Forbes, but insisted 
 on as to Armitage, because their is no proof of the express ap¬ 
 probation of the owner as to him. 
 
40 
 
 The main question is upon the first point. Was Jerry a 
 slave at the time Forbes and Armitage aided in seizing him at 
 Columbus ? 
 
 1. Slavery is contrary to the law of nature, and contrary to 
 the law of nations, and exists only by force of the municipal 
 law of the land. 
 
 2. Slavery is strictly local and confined within the territo¬ 
 rial limits of the state where it is sanctioned, and cannot follow 
 the fugitive beyond those limits, except by positive law bind¬ 
 ing on both sides of the line. 
 
 3. The only law varying these great principles of natural 
 and international law, is that to be found, 1st, in the ordinance 
 of 1787 for the government of the Northwestern Territory : 2d, 
 in the Constitution of the United States, and 3d, in the law of 
 Congress of 1793, which latter cannot be so construed as to 
 diminish the guaranty of liberty contained in the ordinance 
 of 1787, or to extend the rights guaranteed to the owners of 
 fugitive slaves, by the Constitution of the United States. 
 
 4. The clauses of the ordinance of 1787, of the Constitution 
 of the United States and of the law of Congress of 1793, 
 anthorizing fugitives from labor to be pursued into the North 
 Western Territory, being contrary to the law of nature, con¬ 
 trary to the law of nations, and restrictive of human liberty, 
 must be strictly construed. 
 
 5. Strictly construed, these clauses can extend to but one 
 case—that of an escaping slave. This implies a voluntary act 
 of the slave,,contrary to the will of the master, and if by any 
 other means than by his own will he is carried into the North 
 Western Territory, the relation of Slavery ceases as completely 
 as if he had been carried into France or any other foreign state. 
 
 6. If the slave becomes free but for a moment, he can never 
 again be reduced to slavery S not even by his own act, because 
 the right of freedom is unalienable. 
 
 7. It matters not that the slave was carried beyond the line 
 by a bailee to whom he was hired ; if he is carried over in the 
 relation of a slave, even by a person having a temporary do¬ 
 minion over him, he becomes ipso facto free, and the owner 
 has his right of action against the bailee for the loss of his ser¬ 
 vices. The law governing chattels does not apply to property 
 in human beings. God gave man dominion over, and property 
 in the beasts of the field, &c., but the property in man he re¬ 
 served to himself. The property in animals is natural and 
 binding every where ; that in man, is conventional, municipal, 
 local, and to be kept within the literal meaning of the writ¬ 
 ten law. 
 
 These points I have urged with some warmth, but no more, 
 I trust, than becomes one believing most religiously the truth 
 of what he says. 
 
41 
 
 But I have another duty]'to discharge. I cannot sit down 
 without thanking the court for the indulgence and [facilities 
 afforded me ; vacating all other business for my accommoda¬ 
 tion, and tendering every means in its power to dispatch my 
 mission. The authorities have received me promptly and 
 respectfully, and the citizens have displayed not merely the 
 civility due a stranger, but the courtesy and kindness due to 
 a brother of the Union. For all this I feel that I owe an 
 expression of hearty gratitude ; and whatever other message 
 the result of the deliberation of the court may require me to 
 bear back to the authorities of Ohio, I shall feel it a duty 
 which I shall execute with the liveliest pleasure, to tell them, 
 that I have discussed the subject of slavery in the capital of 
 Kentucky, with boldness and safety ; surrounded by slave, 
 holders who treated me with the utmost consideration and 
 respect. 
 
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