et personam comitari, cum hoc effectu ut ubivis locorum, eo jure quo tales persona alibi gauderint vel subjecti sunt fruenter et subjiciantur, 2 Huberus, 541. de Confl. Legum. But the plaintiff's counsel says, the constitution of Ohio did not, on her removal, ipso facto, vest freedom on her, but conferred only the right of procuring it to be decreed by the tribunals of that state. That the provision, being a penal one, ought not to be enforced by the courts of other states That the acquisition of freedom by the plaintiff, or what is the same thing, the forfeiture of the owner's right, cannot be incidentally pronounced, and cannot be decreed, except by a judgment in a suit against him, whose right is to be destroyed. Had the framers of the constitution of Ohio intended that slavery might exist in that state, in the persons who might be removed thither, until certain formalities should be complied with, they would have used different words. It would be idle for a court to decree, that thereafter slavery cannot exist in A. B., when the constitution proclaims that it exists in no one in the state. The article of the constitution is not a penal one, and denounces no forfeiture. Penalty and forfeiture essentially presuppose the omission of an act commanded, or the commission of one forbidden. The article does neither command nor forbid any act. It warns owners of slaves in other states, removing into Ohio, to sell or leave them behind, if they are not intended to be emancipted, and promises emancipation to all slaves brought in, or permitted to come in, on their master's entering the state with the view of fixing their domicil in Ohio. A penalty or forfeiture cannot be decreed without a prosecution and conviction, and must ordinarily be sued for within a given period. In almost every case of removal, the consequences of it are acknowledged and submitted to. How then is the new citizen of Ohio to be prosecuted, and of what is he to be convicted? Should a citizen of a neighboring state, where emancipation may be forbidden, restricted, or attended with expense, consent to allow a slave to go and enjoy his freedom in Ohio, is the grateful slave to arrest and prosecute his former owner, the first time he accidentally comes to Cincinnati? and if he never comes, and as no forfeiture can be decreed without the defendant being brought in, or at least cited, will slavery, in spite of the constitution, exist in Ohio, until the former owner comes into that state, and be served with process? If the freedom of the former slave shall be a forfeiture, which is to be decreed in an action, and the owner die before he is sued, so that the pretended offence die with Different periods constitu ting one year. him, will slavery exist for ever in Ohio? We conclude, that the constitution of the state of Ohio emancipates ipso facto such slaves whose owners remove them into that state, with the intention of residing there. That the plaintiff having been voluntarily removed into the state by her then owner, the latter submitted himself, with every member of his family, white and black, and every part of the property brought with him, to the operations of the constitution and laws of the state; and that, as according to them, slavery could not exist in his house. Slavery did not exist there, and the plaintiff was, accordingly, as effectually emancipated by the operation of the constitution, as if by the act and deed of her former owner; that she could not be free in one state, and a slave in another; that her freedom was not impaired by his forcibly removing her into Kentucky, to defeat her attempt to assert her freedom; nor by her subsequent removal, voluntary or forced, into this state. This opinion is in conformity with that of the court of appeals of Virginia. Bibb. 2 Marshall's Rep. 467. It can work injury to no one; for the principle acts only on the willing, and volenti non fit injuria. The plaintiff's counsel has laid great stress on the former owner of the plaintiff removing into Ohio, with the intention of settling, and it is this circumstance which governs the case. In the decision of the court of appeals of Kentucky, it is expressly said, that slaves attending their master's sojourning in, or travelling to Ohio, are not thereby emancipated. As this point has no bearing on the present case, it is useless to consider it. Judgment affirmed, with costs. 2. STEWART V. OAKES. Dec. T. 1813. 5 Har. & Johns. Rep. 107. (note.) The court held, that a slave carried at different periods to Virginia by his owner residing in this state, and employed working at his stone quarries, the several periods amounting in the whole to one year, such slave is entitled to his freedom under the law of Virginia of the 17th of Dec, 1792, ch. 103. §. 2. 3. RANKIN V. LYDIA. Fall. T. 1820. 2 Marshall's Rep. 467. slave into a not per Held by the court, Mills, J., that where a master took his slave Taking a in the state of Indiana, where slavery does not exist, and register- state where ed her, under the act of the 17th of Sept. 1807, which authorized slavery is the introduction of negroes and mulattoes, (but not slaves,) and mitted. made valid a binding or compact to serve for a period of years; on her return to Kentucky, on a question of freedom or slavery, the slave was free. The master agreeing to accept a temporary servitude of his slave was an admission of freedom, which he is estopped to deny, or any other person claiming under him. 4. HUNTER, pauper, v. FULCHER. March T. 1829. 1 Leigh's Rep. 172.; S. P. GRIFFITH V. FANNY, Gilm. Rep. 143.; MURRAY V. M'CARTY, 2 Munf. Rep. 393.; RANKIN V. LYDIA, 2 Marshall's Rep. 467. slave was taken from Virginia with his master in to another This was a suit for freedom brought in the hustings court of Where a Richmond. 5 Rand's Rep. 126. It appeared the master took his slave from Virginia to Maryland, and resided there with him for the period of twelve years, and then returned with him to Virginia. By the statute of Maryland, all slaves brought into that state state, to reside are declared free; which statute was in force all the time of the slave's being in Virginia. The question was, whether the slave was free or not. The hustings court decided he was not entitled to his freedom. The slave appealed to the circuit court, which affirmed the judgment of the hustings, and the slave appealed to this court. The court observed, they saw no objection in principle to giving full effect here to the laws of Maryland operating upon the rights of persons who were subjected to them. Per Green, J. The law of Maryland having enacted, that slaves carried into that state for sale, or to reside, shall be free, and the owner of the slave here having carried him to Maryland, and resided there with him for twelve years, thus becoming himself a citizen of Maryland, and voluntarily subjecting himself and the slave to the operation of her laws, I think the right to freedom vested, and could not be divested by the bringing him back afterwards to Virginia. Judgment reversed. where the clared that law de slaves bro't in to reside should be free, and resided with him for a perion being od of years, taken back the court held he was free. 5. The treaty of cession by Virginia to the United States, ranties to tants of the North liberties, does not render void of the ordi 1787 which state may, HARVY and others v. DECKER and HOPKINS. June T. 1818. Per Cur. This is a motion for a new trial, and the reasons assigned embrace the whole grounds of the case. Without making points, upon which the court below have unanimously agreed, but touching them incidentally, I shall confine myself to such as have which gua- occasioned a difference of opinion. I will, in this place, premise, the inhabi- that it is, and always will be, a source of regret to me when I am so unfortunate as to differ from my brethren of the bench, and it west Ter- is particularly to be regretted, when the importance of the question ritory their titles, is great, and when unanimity is so desirable, both to the bench rights, and and to the parties whose interest is the immediate subject of adjudication. But as a judge, I have a duty paramount to all these that article considerations, which must prevail, however unpleasant to my own nance of feeling, and whatever may be the consequences to others. The congress of facts in this case are not controverted: that the three negroes prohibits were slaves in Virginia; that in 1784 they were taken by John slavery in that territo- Decker to the neighborhood of Vincennes; that they remained ry Any there from that time until the month of July, 1816, that the ordiby its con- nance of congress passed in the month of July in the year 1787, stitution, prohibit and the constitution of the state of Indiana was adopted on the 29th of June, 1816. These are the material facts, but the law limits. arising out of the ordinance treaty of cession of Virginia to the restrained United States of that district of country, and the constitution, is stitution, controverted. To clear away the difficulties arising from extraneous matter, and to place the grounds of this opinion plainly before the court, a short history of the country will be necessary. The Territory country was within the chartered limits of Virginia, but from the freemen, year, until the peace of 1763, it was subject to and claimed. by virtue of by France. By the peace of '63, it was ceded to Great Britair. nance of It will appear by reference to the proclamation of Gen. Gage, in anart 1775, and to the acts of Col. Wilkins, in granting lands as govertheir claims nor of Illinois, that it was under a government distinct and sepain the rate from the then colony of Virginia. During our revolutionary war, it was conquered by the arms of Virginia; but there has been exhibited no evidence to show that the laws of Virginia were ever extended to that country after its conquest, or that Great Britain, after the treaty of '63, by which she obtained it, ever changed the laws then existing in the province. I have carefully examined the acts of Virginia, and can find no provision extending its laws to slavery within its When not by the con slaves with in the limits of the Northwest became the ordi 1787, and assert to freedom courts of this state. that district of country. I think, then, that it is undeniable, that the laws as they existed while it was a province of France, were the municipal laws of the country. This opinion is supported by the treaty of cession from Virginia to the United States, and also by the ordinance of 1787. The treaty of cession provides, that the French and Canadian inhabitants, and other settlers who profess themselves citizens of Virginia, shall have their poss ssion and titles confirmed, and be protected in the enjoyment of their rights and liberties. We find that until the governor and judges shall adopt laws, the manner of passing and transferring estates and sale of personal property declared; saving to the French and Canadian inhabitants, and other settlers of the Kaskaskias and Vincennes, and other villages, the laws and customs now in force among them relative to the descent and conveyance of property. If the laws of Virginia were extended to them, there could exist no possible necessity of making the saving clause. The question that necessarily arises is, in what relation did they stand to Virginia? As a province, must be the answer; and in this condition they passed to the United States under the treaty of cession of Virginia. It is an unquestionable rule, that the laws equally effect all persons and all property within the territorial limits of a state or province, unless there be some special reservation. Wherever a person lives, he puts himself, for the time, under the protection of the laws of the place; and John Decker had no privilege distinct from the French and Canadian inhabitants. In the treaty of cession they were not parties, but the subject in part of the treaty. The clause guarantying their titles, possessions, rights and liberties, was a matter of favor, and designed for their exclusive benefit. They not being in a situation to contract for themselves, the sovereign made the contract. The cession of Louisiana is an apt illustration. The rights and privileges they possess arise from the treaty of cession. That the sovereign of a conquered country can make such changes, alterations, and dispositions, as he may think proper, is a principle too well established to require the citation of authorities to support. But it is said, that a treaty is a sacred instrument, and cannot be violated. This is admitted; but the question then arises, is the clause in the ordinance prohibiting slavery, or involuntary servitude, a violation of the treaty of cession? Before an act of congress is declared inoperative, for violating fundamental principles, the court ought to |