In the matter of George Kirk, a fugitive slave. state. Again, comity is practically found-| southern states do not practice the comity ed on the consent of nations, and the need which is our due. In defiance of the of reciprocating good offices. Mr. Har- provisions of the constitution of the Unigrave, in his elaborate argument in the ted States that the citizens of each state Somersett case said, that most of the are entitled to "all the privileges and imEuropean states, like England, disregard- munities of citizens in the several states," ed the lex loci in respect to slaves, and their rights are openly violated by the laws gave them entire liberty-and Mr. Chan- and practice of the south. Their color cellor Kent remarks,f that there is no such is made presumptive evidence of their thing as the admission of slaves or slavery being slaves, and free colored men who in the spirit of the civil law, or of the laws are called to the south by business or famand usages of the West Indies, either in ily claims, are arrested as fugitive slaves. England or in any part of Europe. In The burthen is thrown upon them, when the case of Fulton v. Lewis,‡ decided in far from home, and perhaps friendless and the Maryland court of appeals, which was penniless, of proving their freedom, and another instance of the high integrity of in default of such proof they are liable to which I spoke as characterizing many be sold, and some of them have been sold decisions in the slave-holding states of the under the laws of these states for the payunion, the slave of a St. Domingo master ment of their jail fees. who had fled to that state, was pronounced free, although he had been sold since his arrival. There is no such consent of nations, therefore, on the subject of slavery to form the basis of comity. In the next place, there is no room here for reciprocity between New-York and the southern states. We have no slaves, thank God, whom— MR. BLUNT, (counsel for Captain Buckley,) Do you mean to say there are no slaves in New-York. MR. JAY. I do say so certainly, and I cite Mr. Chancellor Kent as my authority. MR. BLUNT. As a matter of fact then, I would have you to know that there are slaves in this state. Mr. JAY. If there are slaves in this state, I did not know it, and I am sorry to learn it. Mr. Chancellor Kent expressly declares in the chapter I have quoted, that slavery is extinguished in New-York, and such was the intention of the law.§ If any slaves remain unemancipated it is through some unforseen exception; but even if the fact be as the learned counsel states it, the few aged slaves that may be left do not afford an opportunity for a reciprocal comity. But we have free colored men in regard to whom the *Story's Conflict of Laws, 29, 271. t Kent's Com. 203. Hen. & John. Rep. 564. The national census of 1840, shows four slaves in New-York. These were probably brought to the north by southern masters, who were then allowed to hold them in this state for nine months. The state census of 1845 does not return a single elave. Again, the merchants of New-York and New-England find it convenient to employ persons of color on board of their ships. The moment their vessels touch at Charleston, or Savannah, or Mobile, or New-Orleans, they are searched, those free persons are taken out and imprisoned by public authority, but at the expense of the captains, until the vessels are ready to sail. These proceedings are greatly to the detriment and prejudice of the owners' interests, and of the commerce of the nation, as well as a gross violation of the rights of colored seamen. I am well aware that the southern states claim the right to pass these laws on the ground that they are necessary police regulations, but one of their own judges, the Hon. William Johnson, of South Carolina, in the case entitled, exparte Henry Elkinson, a subject of her Britannic Majesty, v. Francis Delisseline, sheriff of Charleston district,* contained in a report of the House of Representatives to which I will refer your Honors, said, "of the unconstitutionality of the law under which this man is confined, it is not too much to say that it will not bear argument." Mr. Wirt gave an opinion to the same effect which is published in the same document.i That report was founded as the memorial of 150 merchants of Boston, protesting against this infringement of their rights by the laws of the southern states,‡ and * Contained in Report No. 80, H. of Rep., 234 Congress, 3d Session, p. 20. + Pages 35, 36. Laws of derogation of the rights of northern In the matter of George Kirk, a fugitive slave. the extent to which they have sometimes | Liberator, published in the town of Bossuffered, appears from a remark of Judge ton and state of Massachusetts." Johnson, in the decision referred to, that in one case "not a single man was left on board the vessel to guard her in the cap tain's absence." Here, then, are clear violations, both of the rights of northern merchants and of our free citizens of color; and if it should be denied that persons of color are citizens in the meaning of the constitution, I will quote an act of congress distinctly recognizing them as citizens.* MR. BLUNT. I do not deny it. MR. JAY. It may be urged that the good understanding which has existed between this state and Georgia, while differences have arisen with some of the northern states, entitles Georgia to the exercise of a comity which others could not so reasonably claim. But it is impossible for this court to make any distinction of this kind; and if such a distinction could be made, is Georgia entitled to it? I remember well her services and her struggles in the war of our revolution, when no state of the old thirteen suffered more severely. I remember her generous conduct towards Massachusetts in the hour of peril, and the many interesting associations which closely connect her with our common history; and of all the slave-holding states there is no one containing more distingushed gentlemen-to whom, altho' never within her borders, I am personally indebted. But, may it please the court, standing here as counsel for this boy, whom it sought to reduce to slavery by the exercise of a discretional comity, I cannot forget that Georgia has enacted these odious laws, so oppressive to our colored citizens and our northern merchants; and that in 1831 the legislature of Georgia passed an act which was duly approved by her governor,† and which, I believe, still disgraces her statute book, offering a reward of five thousand dollars for the abduction "of the editor or publisher of a certain newspaper called the men are found in Prince's Dig. of Laws of Georgia, 465, 467. Laws of N. C. 1830, ch. 30, ch. 981. 1826, ch. 21, p. 684, ch. 362. Miss. Rev. Code, p. 387, § 80, 377, § 341. Virg. Laws, 1830, ch. 39. S. C. Laws, 1820, p. 322, 1823, p. 361. Martin's Dig. 678, as quoted by Mr. Loring in his argument. Act of congress, passed Feb. 28, 1803. t Dec. 26, 1831. I cannot forget that it was in the streets of Savannah, the very city whence this vessel comes, that Mr. John Hopper, a member of this bar, well known to your honor the circuit judge as a lawyer of intelligence and worth, the son of the venerable gentleman who has been well called the Clarkson of America, was a few years since mobbed and well nigh murdered, because he was suspected of being an abolitionist. A police officer of this city, who was concerned in that outrage, was promptly punished on his return to NewYork, by dismissal from his office; but 1 have not heard that the authorities of Savannah ever vindicated their honor by punishing their own aggressors upon an unoffending stranger. There is another argument against the exercise of comity in this case, possessing great weight, and no small degree of historical interest. How far slavery shall be recognized by the free states, has already been settled by positive agreement. The constitution was a compromise, the result of long deliberations and mutual concessions; and the history of that compromise, as given in the debates of Mr. Madison, show how unwillingly the north sacrificed her principles for the sake of union. On the subject of slavery she made three distinct concessions. First, she consented to the continuance of the African slave trade for twenty years-although this was one of the grievances of which they had complained in the declaration of independence. Mr. Pinckney declared-"South Carolina can never receive the plan if it prohibits the slave trade."* Great was the disgust of the north at this concession, and even in the Virginia convention it was stigmatized as an infamous and detestable thing. "Such a trade," said Mr. Mason, "is diabolical in itself, and disgraceful to mankind." Secondly, the constitution allowed the slaves to form the basis of representation, although they were claimed and held as property. To this there was equally strong Mr. Governeui opposition at the north. Morris, of this state, said that "he would never concur in upholding domestic slavery. It was a nefarious institution." * Madison Debates, 1388, 9. In the matter of George Kirk, a fugitive slave. “He would add that domestic slavery is the most prominent feature in the aristocratic countenance of the proposed constitution. The vassalage of the poor has ever been the favorite offspring of the aristocracy. And what is the proposed compensation to the northern states for a sacrifice of every principle of right-of every impulse of humanity? They are to bind themselves to march their militia for the defence of the southern states against these very slaves of whom they complain."* Mr. Gerry refused to sign the constitution for the reason that three-fifths of the blacks were to be represented as if they were freemen.t In the legislature of Maryland, Mr. Martin, one of the delegates to the convention which formed the constitution, asked, "what peculiar circumstances should render this property (of all others the most odious in its nature) entitled to the high privilege of conferring consequence and power in the government to its possessors, rather than any other property; and why should slaves, as property, be taken into account, rather than horses, cattle, mules, or any other species ?" Mr. Smith, in the convention of NewYork, said, "he could not see any rule by which slaves were to be included in the ratio of representation-the principle of representation being that every free agent should be concerned in governing himself, it was absurd to give that power to a man who could not exercise it. Slaves have no will of their own-the very operation of it was to give privileges to those who were so wicked as to keep slaves. He knew it would be admitted that this rule of apportionment was founded on injustice; but it was the result of accommodation, which, he supposed, we should be under the necessity of admitting if we meant to be in union with the southern states, although utterly repugnant to his feelings." Thirdly, the constitution forbade the discharge by the free states of fugitives from slavery, and provided that they should be delivered upon the claim of the party to whom their service was due. By that provision the whole north was made * Madison's Debates, p. 1261 '2 '3 '4 '5 '6. + Idem, 1595. a hunting ground for slave catchers, who may recapture their fugitive slaves wheresoever they may find them. How was it before the adoption of the constitution? Mr. Madison, in the Virginia convention, said, "at present, if a slave elopes to any of the states where slaves are free, he becomes emancipated by their laws, for the laws of the states are uncharitable to one another in this respect." 66 General Pinckney, in the South Carolina convention, said, we have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could, but, on the whole, I do not think them bad." Mr. Justice Story, in Prigg v. Commonwealth of Pensylvania,* and Mr. Justice Wayne, in the same case,t mention this fact, and quote the language of southern gentlemen; and Mr. Justice Story, in his Conflict of Laws, speaks of the "many sacrifices of opinion and feeling" involved in the adoption of the constitution. The stipulation respecting fugitives was exceedingly obnoxious to the people of the north. It tainted with oppression their air, which might otherwise have been at this day, like that of England, too pure for slaves to breathe. It openly violated the command of scripture-" Thou shalt not deliver unto the master the servant who hath escaped from his master unto thee. He shall dwell with thee where he liketh it best; thou shalt not oppress him." Our free states afford no resting-place for the weary fugitives, who are not safe until, having crossed the boundary of our republic, they rest on British soil. It is clear, therefore, that the constitution having been a compromise—a bargain between the north and south, framed upon concessions and adopted after long hesitation, the north has already surrendered all that she intended; as Mr. Pinckney said the south got all she could, and there is nothing left for comity to demand. The ratification of the constitution at the north was nearly defeated by conces 16 Peters, 612. + Idem, 648. In the matter of George Kirk, a fugitive slave. sions embodied in it-had it been supposed that further concessions were to be claimed, and on the score of comity, it would not have been ratified at all; and good faith towards our own citizens must forever forbid our courts of justice from going one jot further than the constitution has already gone, or yielding one tittle of what still remains to us of the common law. In addition to the arguments already advanced against the recognition of the laws of Georgia, cited by the respondent, it is well established that the principle of comity never applies to contracts or laws which offend our morals, or contravene our policy, or violate public laws, or offer a pernicions example.* Such authorities require no refutation before this court, although it would be easy to cite the testimony of slaveholders themselves-of Washington, Jefferson, Henry, Pinckney, Randolph, and many others. If there is truth in the principles of our Government, there is no truth in slavery. If liberty be an essential right, slavery is an essential wrong, and the detention of this boy in our city, as the slave of the respondent, until the sailing of his vessel, though it were but a single week, would have a demoralizing and pernicious influence. MR. BLUNT. Am I to understand the gentleman as saying that the detention of this boy for one week in New-York city as a slave, would have a contaminating It is unnecessary to enter into a discus- influence'? sion of these points to show that slavery MR. JAY. I do say so, and if the coun sion. is violative of justice and natural right-sel wish, I will quote authorities for the of sound morality and settled policy. The assertion. case of Somersett was mainly argued and MR. BLUNT. I only want to know the determined on these grounds, and without fact; I thank the gentleman for the admisdelaying the court by reading authorities, I will refer them to the opinion of Chief Justice Best, in Forbes v. Cochran, where that dstinguished judge prouounced slavery a wicked system, for the abolition of which every Englishman was bound to labor; to the opinion of Judge Sedgwick, in Greenwood v. Curtis, and Judge Story's approving remarks thereon.§ To the testimony of Judge Marshall, in the case of the Antelope, and to the decision of chief Justice Shaw, in the Commonwealth v. Aves.¶ I know well that great names may be cited to show that slavery is not a curse, but a blessing; that it is the special gift of God to the people of the south, to be cherished with thankfulness and guarded with religious care. Among its happiest characteristics, according to its defenders, is that it supplies the want of an order of nobility, and the other appendages of an hereditary system of aristocracy. It is a system by which the black man is to work and live in poverty and ignorance, while his master is to enjoy elegant leisure, and revel in the luxuries furnished by servile labor. 2 Kent's Comm., 457. Story's Conflict of Laws, 95. 6 Mass. R., 366. 6 Mass. R., 366. Barn. & Cress., 471. 18 Pickering, 205. MR. JAY. I hope the counsel will not misunderstand me. I do not say that this boy will exercise a contaminating influence, but that his continuance here as a slave will have such an influence; and as the remark seems to have excited surprise, I will read a single paragraph from Thomas Jefferson, the father of democracy, on the corrupting influence of slavery, not only upon the master himself but upon all who witness its operation. THE COURT. We think it unneces sary. MR. JAY. I agree with your Honors that it is unnecessary to cite authority to show that the presence in our midst of a slave-a man degraded to the condition of a chattel to be bought and sold is not only repugnant to our law and disgusting to our feelings, but injurious to that honest simplicity of character which it is our aim to encourage among our happier citizens, who born to freedom and uncontaminated by the taint of slavery, know that it is honorable to labor, and that not ill-gotten wealth, but honest independence, confers dignity-who are taught to regard it not only as dishonest, but as mean and contemptible in the highest degree for one man to live in idleness on the unrequited whip-extorted labor of others. Having thus shown that by the common In the matter of George Kirk, a fugitive slave. law of this state, which forbids the recog- | quirements. The respondent has not nition of the laws of Georgia cited by the complied with them. He did not arrest respondent, this boy is free, unless the George and take him before a judge for constitution of the United States has given the purpose of obtaining a certificate. He to the respondent the right to detain him, secreted him on board of his vessel and let us see what authority is given by that removed the vessel from the wharf. He instrument or by the laws of congress in has not sought this investigation, but he conformity thereto. has shunned the light, and has only been brought before your Honors by the strong arm of the law. By § 2, of the 4th article, "No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor shall be due." By the act of February 12, 1793,* the person to whom service is due, his agent or attorney, is authorized to seize the fugitive and take him before a judge or magistrate, and upon proving orally or by affidavit that the party claimed is a fugitive from service, to which he is held under the laws of the state from which he fled, that the person to whom the service is due, wishes to reclaim him, and has appointed the claimant his agent or attorney for that purpose, the magistrate will grant a warrant for his removal. All state legislation respecting fugitives was expressly decided in Prigg v. The Commonwealth of Pennsylvania,t to be unconstitutional-the right to legislate on this subject being exclusive in congress. So that whatever claim the respondent makes to this boy he must make under the constitution and this single act-which being in derogation of human liberty are to be construed strictly. He cannot claim under the provision of the constitution, however large the interpretation which has been given it, for the reason that by his own admission he is not the person to whom the service is due, the return alleging that it is due to Mr. Chap man. He cannot justify the detention of the boy under the act of '93, even if he were in a position to avail himself of itwhich is not the case. That act gives to the party entitled certain powers over a fugitive, upon a compliance with its re * 1 United States Statutes, 302. † 16 Peters. Butler v. Hopper. 1 Washington, C. C. 501. Ex parte Simmons, 4 Washington, C. C. 396. Commonwealth v. Aves. 18 Pickering, 222-3. But had he gone before a judge, under the act of '93, this return does not show the requisite proof to entitle him to a certificate. First, He is to prove that by the laws of Georgia this boy owes service or labor. There is no averment in the return that George owes service or labor to any one, but merely that he is held to labor or service "as the slave of Charles Chapman." The objection is not captious or technical, but real, fundamental and substantial. A few years since, the legislature of NewYork passed an act providing for the appointment of agents, at the expense of the state, to travel through the south, and recover free colored citizens who had been kidnapped. George may be, for ought that appears on the return, a free citizen of New-York, who, having been kidnapped and carried to Savannah, was there held as a slave, without being a slave or owing service. The claim of the respondent is in derogation of personal liberty, of natural right, and of common law. The proof must in every particular agree with the requirement. This court has no intendments in favor of slavery, and will only yield to the exact compact. Claim a slave in such manner as the constitution recognizes, and he may be given up; but let us discover the slightest flaw in your demand, and we will avail ourselves of it to vindicate the honor of the state and the rights of the fugitive. The presumption here is, that the boy is free-not as in Georgia, that he is a slave. The return says that he admitted himself to be a slave. Be it so; under what circumstances was that admission made-was he free to go and come when he made it? Was it a voluntary confession, with no one by to control him? It was a confession made under duress, and altogether worthless. But had it been a voluntary confession, a man cannot confess himself into slavery |