Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/42

 condition is contrary to the policy of the State to which he returns. And this seems to be the result of all the rules laid down in Huberus de conflictu legum, §§ 2, 12, 13, to whom we refer, not only because there is no civilian of higher authority, but also because Mr. Justice Nelson, by citing some parts only of these sections, makes him appear to support a different theory.

The effect of the above principles, as applied to the case of a master and slave going together from a State where slavery is allowed, to a free State, and there residing for a time, and thus becoming subject to its laws, even if they do not acquire a domicil, and then returning together to a slave State, would seem to be this: By the removal into a State where slavery is prohibited by law, the master loses his right of control, and the slave becomes a freeman; and on the return of both to the State where slavery is allowed, the former slave remains free, unless the laws of the State either utterly forbid emancipation, or expressly make a person of his condition, color, or antecedents a slave as soon as he comes within the limits of the State.

Those who deny this result, usually rely, as a foundation for their argument, upon the theory that laws which prohibit slavery affect only the master's right of control, and not the condition of slavery; or as Lord Stowell, after admitting the law, as laid down by Lord Northington, that a negro may maintain an action against his master for ill usage, and may have a habeas corpus, if restrained of his liberty, states it, "The law of England relieves him in these respects from the rigors of the slave code while he is in England; and that is all that it does." 2 Hagg. Adm. 117, 118. But the law recognizes no intermediate condition between freedom and slavery; and as slavery consists only in subjection to the dominion of the master, it is somewhat difficult to understand how that dominion can be taken away, and yet the state of slavery continue. Such a construction, instead of giving full effect to the Constitution or law which prohibits the existence of slavery at all, makes it recognize slavery as a right, and only refuse the master the means necessary to enforce that right.

It is not necessary to quote the different forms of words by which slavery is prohibited in the Constitutions and laws of other Northern States; but it would be difficult to frame more apt words of utter denunciation and prohibition than those of the Ordinance of 1787, which have been adopted in the Constitutions of all the States formed