¶1delivered the opinion of the court: The indictment charged that Willard unlawfully did secrete one Julia, by name, being a mulatto girl, and person of color, and who was a slave owing service, as such, to Sarah W. Liles, in the state of Kentucky, under and by virtue of the laws of said state, and in the state of Louisiana in and by virtue of the the laws thereof, in which latter state Sarah W. Liles re- [*469] sides; and that said slave escaped from the possession and ' custody of said Sarah, the owner, without her knowledge or consent, while in the state of Illinois, and passing from the state of Kentucky to the state of Louisiana, through the state of Illinois; all of which facts were then and there known to said Willard.
¶2To this indictment Willard demurred ; the demurrer was overruled | and he abiding by his demurrer, the court imposed a fine upon him. This is assigned for error.
¶3The 149th section of the criminal code provides that, “ If any person shall harbor or secrete any negro, mulatto, or person of color, the same being a slave or servant, owing service or labor to any other person, whether they reside in this state or in- any other state, or territory, or district, within the limits and under the jurisdiction of the United States, or shall in any wise hinder or prevent the lawful owner or owners of such slaves or servants from retaking them in a lawful manner, every such person so offending shall be deemed guilty of a misdemeanor and fined not exceeding five hundred dollars, or imprisonment not exceeding six months.”
¶4It is contended that this section is in violation of the 3d clause of the second section of the 4th article of the constitution of the United States, which provides that “ 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 claim of the party to whom such service or labor may be duethat it violates the act of congress which was passed to carry into effect this provision of the constitution; that it violates the 1st section of the 6th article of the constitution of the state of Illinois, the 1st section of the 8th article, and the ordinance of 1787.
¶5To maintain these propositions, a wide range of argument was gone into, and much discussion had upon the institution and nature of slavery, and the interpretations, and rules of interpretation of the constitutions of the general and state governments by the courts of the United States, and the separate states.
¶6Many of the authorities cited and read on the argument shed much light upon the science of the law, but have no application to the questions presented in this case.
¶7The rules of interpretation, and the construction of the constitution of the United States, on most points that have been adjudicated, have been so firmly settled, and are so well known, that it needs not to state them or cite the reports for vouchers, as they have become axioms in the service of constitutional law, and the common property of the profession.
¶8The late case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters 539, has shed much light upon the above clause [*470] of the constitution; in which it is held that the power to legislate on the subject of fugitive slaves, as provided in that clause, belongs exclusively to congress, and that no state can pass any law either amendatory or ancillary to the legislation of congress; that any state legislation intended to aid the master, or punish individuals, in addition to the penalty imposed by the act of congress, for hindering the owner from recovering his slave, etc., is ancillary to the act of congress, and therefore unconstitutional and void.
¶9This then settles the question, as to state legislation upon that subject, and for those objects. The argument of the court has proceeded to the very verge of jurisdictional boundaries between the national and state governments; but the court expressly admits that the states have jurisdiction to provide police regulations, for the preservation of order, the administration of its own affairs, and internal intercourse.
¶10And here we approach a most delicate question of jurisdiction between the two governments. If no regulation by a state is constitutional, which may incidentally afford protection to the rights of slaveholders, no matter how essential it may be to preserve quiet and order in our community; to protect us from vagabond, or pauper slaves; to punish or prevent them from entering our territory, if we think proper; to forbid it, or punish those who may encourage them to come, or harbor or secrete them, while here, we are then, indeed, exposed irremediably, for hundreds of miles of contiguous boundary with Missouri and Kentucky, to heartburnings, criminations, and recriminations, quarrels, brawls, excitements, affrays, and breaches of the peace, arising from the influx of that unwelcome population, and the • disturbances to which it may and does give rise. The power is so indispensable to our well being, and the good ordering of our own affairs, that I cannot doubt the power of the legislature to regulate it. The latter clause of the section does most clearly fall within the principles of that decision; but the clause of the section under which the plaintiff is charged, neither gives the owner damages, nor apprehends, or restores the slave, nor in any way affects or furthers his claim or promotes his, rights, unless it does so incidentally, by forbidding acts which may occasion disorders in our own society. If this view of the nature of this act of our legislature be correct, it is a police regulation, and- is not ancillary to the act of congress, or in violation qf the constitution of the United States.
¶11The remaining question is as to the repugnancy of this act to our own constitution and the ordinance of 1787. The case of Sarah v. Borders, ante 341, and the cases there referred to, have discussed the effect of the ordinance upon our legislation. All persons in this state are deemed to be free (3 Scam. 71), but the indictment declares that Julia is a slave, and the demurrer admits all the facts that are well pleaded. Did then the constitution effect her emancipation on entering our borders ? [*471]
¶12The demurrer admits that Julia is a slave owing service to Mrs. Liles in the state of Louisiana, where she resides; and that the slave was brought into this state merely on and for the purpose of herpassage from Kentucky to Louisiana, and that Julia escaped without her knowledge or consent. The only question, therefore, is, the right of transit with a slave. For if the slave upon entering our territory, although for a mere transit to another state, becomes free under the constitution, then the defendant in error is not guilty of concealing such a person as is described in the law and in the indictment. I cannot see the application to this case, if the law of nations in relation to the domicil of the owner fixing the condition of, and securing the right of property in this slave, and regarding the slave as apart of the wealth of the state of Louisiana; and our obligation of comity to respect and enforce that right. Story’s Conflict of Laws §§ 27-29, 33-38, as to the meaning and rights of “ comity,” §§ 349, 414, 472. As the question is here presented, it is not as to the civil rights of the master and slave, being affected by our constitution, or. whether by the laws of this state the owner could enforce the obligation of service; but it is as to the guilt of the plaintiffin error, in violating the provisions of our municipal regulations. It may be one thing to recognise the existence of the laws and institutions of another government or nation, as fixing a condition of slavery upon a part of her population, and creating, sanctioning, and enforcing the rights of masters over it; and another thing to provide remedies to enforce those rights within our jurisdiction. Story’s Conflict of Laws, § 196 and 96 a, and authorities referred to. The 149th section of the criminal code, for a violation of which the plaintiff is indicted, does most distinctly recognise the existence of the institution of slavery in some of these United States, and whether the constitution and laws of this state have or have not provided adequate remedies to enforce, within its jurisdiction, that obligation of service, it has provided by this penal sanction, that none shall harbor or conceal a slave within this state, who owes such service out of it. Every state or government may, or may not, as it chooses, recognise or enforce this law of comity. Story’s Conflict of Laws 57 ; 18 Peters 519, 589. And to this extent this state has expressly done so. If we should therefore regard ourselves as a distinct and separate nation from our sister states, still as by the law of nations (Vattel, Book 2, 183, eh. 10, § 132, 184, §§ 133-4), the citizens of one government have a right of passage through the territory of another, peaceably for business or pleasure, and that too without the latter’s acquiring any right over the person or property (Vattel, Book 2, 174, §§ 107-9), we could not deny them this international right, without a violation of our duty. Much less, could we disregard their consti- [*472] tutional right, .as citizens of one of the states, to all the rights, immunities, and privileges of the citizens of the several states.
¶13England will not enforce the law of comity in relation to the institution of slavery in other countries, 2 Hag. 94; 2 Barn. & Gres. 448; 3 D. & R. 679 ; Sommersette’s ease, Loffts. 1. Neither will Massachusetts, 18 Pick. 193; 8 Metcalfe 72. France has made a partial recognition of it only. Law of slavery 348, But Louisiana (8 Louisiana 475 ; 14 Martin 401), Kentucky (2 A. K. Marsh, 476-7), Missouri (3 Missouri 271-2), Mississippi (Walker’s Miss. 36), Virginia (1 Leigh. 172; Gilmer 143; Munf. 393; 6 Randolph 566), have recognised it, and held persons to be free, who had become so by the laws and constitutions of free states.
¶14It would be productive of great and irremediable evils, of discord, of heart burnings, and alienation of kind and fraternal feeling, which should characterize the American brotherhood, and tend greatly to weaken, if not to destroy the common bond of union amongst us, and our nationality of character, interest and feeling. Thousands from Kentucky, Virginia, Maryland, Tennessee and the Carolinas, and other southern states have sought and found free and safe passage with their slaves across our territory, to and from Missouri. It would be startling, indeed, if we should deny our neighbors and kindred that common right of free and safe passage, which foreign nations would hardly dare deny..
¶15The recognition of this right is no violation of our constitution. It is not an introduction of slavery into this state, as was contended in argument; and the slave does not become free by the constitution of Illinois by coming into the state for the mere purpose of passage through it.
¶16It is the opinion of the court that the judgment be affirmed.
¶17delivered the following separate opinion: I concur in the conclusion at which this court has arrived, that the judgment of the court below ought to be affirmed ; but as I do not in the views and reasoning upon which that conclusion is based, I deem it proper to give my own reasons for affirming the judgment.
¶18The indictment alleges, in substance, that Julia, a woman of color, by the laws of Kentucky and Louisiana, owes service to Sarah W. Liles, who resides in the state of Louisiana, and that while the said Sarah W. Liles was travelling from Kentucky to Louisiana, with her said slave, the said slave escaped secretly from her said mistress; all of which the defendant knew, but did unlawfully secrete the said Julia.
¶19The defendant demurred to the indictment, which being overruled by the court, he stood by his demurrer, and thereupon the court below entered a fine against him. [*473]
¶20It is evident that the state’s attorney, in framing his indictment, did not proceed on the ground that Julia was a fugitive slave escaping from a slave state, and fleeing into this state ; for the facts stated- in the indictment show that she was brought into this state by her mistress. It is evident that this case does not come within the provisions of the constitution and law of the United States on the. subject of fugitives from labor. This position is fully sustained by most respectable and unexceptionable authorities. In the case of Butler v. Hopper, 1 Wash. C. C. R. 449, it was held by Justice Washington, in terms, that the provision of the constitution relative to fugitive slaves does not extend to the case of a slave carried voluntarily by his master into another state, and there leaving him under some law declaring him free.
¶21In a more recent case, ew parte Simmons, 4 Wash. C. C. R. 396, which was an application for a certificate to take a slave out of the state of Pennsylvania, under the 3d section of the act of February 12th, 1793, in relation to fugitives from justice and labor, the same eminent judge more directly decided the same point, holding that both the constitution and laws of the United States apply only to fugitives escaping from one state, and fleeing to another, and not to the case of a slave voluntarily brought by his master into such state.
¶22In the case now under consideration it has been elaborately argued by the counsel for the plaintiff in error, that the 149th section of the criminal code of this state violates the constitution of the United States, and the act of congress relative to fugitives from justice and labor. Applying the doctrine of the above authorities to the facts of this case, as set forth in the indictment, and it clearly follows that that question does not arise in this case.
¶23That every person in this state, without any regard to the color of his skin, is presumed to be free, admits of no doubt. This doctrine was fully laid down and sustained by this court in the cases of Bailey v. Cromwell et al. 3 Scam. 73; Cook v. Kinney, 3 Scam. 233.
¶24Julia then was not a fugitive from labor, under the constitution, of the United States and the law of congress, and being brought into this state by her mistress, where the presumption is in favor of her freedom, the question arises what takes her case out of the operation of this general rule ?
¶25The answer is that her ease is taken out of the operation of the general rule by the law of comity, by that law established by common consent among civilized nations or states, which binds them to sustain the institutions and laws of each other, under certain restrictions. The extent and force of this law of [*474] comity is to be ascertained and determined by the courts. The legislature seldom or never undertakes to declare how far the laws of other nations shall be recognised and carried into effect. Judge Story, in his Conflict of Laws, page 25, in considering how the rule as to foreign laws is to be promulgated, whether it should be done by the legislature or the judicial power, says: “ In England and America the courts of justice have hitherto exercised the same authority (that is the authority in question) in the most ample manner; and the legislature has in no instance (it is believed) in either country^ interfered to provide any positive regulations. The common law of both countries has been expanded to meet the exigencies of the times as they have arisen; and so far as the practice of nations and the jus gentium privatum ' has been supposed to furnish any general principle, it has been followed out with a wise and manly liberality.” So also Chief Justice Parker, in Blanchard v. Russell, 13 Mass. 6, says: "As the laws of foreign countries are not admitted exproprio vigore but only sx commitate, the judicial power will exercise a discretion with respect to the laws they may be called upon to sanction; for if they should be manifestly unjust, or calculated to injure their own citizens, they ought to be rejected.” The same doctrine was substantially laid down by Lord Stowell in 2 Haggard 54. From these authorities the conclusion follows, that the courts of this state have the power independent of legislature enactment, rmder the law of comity, and in the exercise of a sound discretion, of determining what laws of other states shall be recognised and enforced in this. Is the case presented in the record of such a character as to appeal to tbe sound discretion of this court to enforce tbe laws and institutions of a sister state? In answering this question regard should be bad to tbe geographical position of Illinois, as well as to tbe relations we sustain to our sister states, confederated under the same general government.
¶26First. In geographical position Illinois is situated between the states of Kentucky and Missouri, and by the laws of both these two latter states slavery is permitted. The directed route of travel by land between these two states lies through the state of Illinois. The intercourse between many other of the slave states and Missouri, when carried on by land, must necessarily be through the state of Illinois. The state of Missouri has been populated principally by emigrants from Kentucky and other states. For upwards of thirty years past these emigrants,' with their slaves, have been permitted, without objection, to pass through this state. While this free passage through the state; with their slaves, recog-nised as property in the states whence they emigrated, has been of great convenience to the slaveholding states, it has not been without its advantages to our own state. Being of mutual advantage it has been permitted for more than thirty years past. If permitted for the future, the like advantages [*475] will continue to our own state, and the same convenience to our sister states.
¶27If the courts of this state, however, should decide that the owner of slaves was not protected under this law of comity, while passing through this state, the result would be that the emigrant with slaves could not pass through our borders. It needs no argument to prove that this privilege of passing through our state, either for business or pleasure, with their slaves, is a very great convenience to oür sister states, and if, after having permitted them this privilege for the last thirty years, we were now to deny it, could they not justly charge us with having availed ourselves of our local position to do them a serious and unnecessary injury ? If the owner of slaves emigrating through this state, without objection on our part, is not protected under this law of comity, it follows that all the slaves who have passed through this state to Missouri are free, and consequently unjustly held in bondage. The facts growing out of our geographical position, the past relations subsisting between this and neighboring states, the inconveniences to which we would subject them by a change of these relations, the loss of benefits to ourselves following a change of these relations, are such as appeal strongly to the discretion of this court.
¶28The relations we sustain to our sister states also furnish strong reasons why the law of comity should be expanded, so as to meet the exigencies arising out of that relation. What, then, are the relations we sustain to other states which ought to affect our pub-lie policy towards them? ■ They are not foreign states. We are bound up with them by the constitution of the United States into a Union, upon the preservation of which no one can doubt that our own peace and welfare greatly depend. Other nations may cherish friendly relations with each other, and endeavor to promote alliances and frequent intercourse, from fear of foreign war, or a desire of commercial prosperity. But to us these relations and this intercourse have a value and importance which are inestimable. They are the grounds of safety for our domestic peace, and for our hopes of the continuation of the happy government under which we live. ' Whatever injures one state injures the others. It is consequently our duty to consult the good of all the states, and so frame and administer our laws, that we give our sister states.no real cause of offence. We ought to do them all the kind offices in our power, consistently with our duty to ourselves. Thus will be produced that concord, that union of affection, and interest among the states, which may prove an enduring cement to that happy and glorious union, upon the continuation of which our hopes-of domestic peace and rational freedom so eminently depend.
¶29[*476] By the law of nations, it would be considered just cause of complaint, if we should arbitrarily refuse to the citizens of foreign nations at peace with us permission to pass through our territories, with their property. If this be so, as regards the citizens of foreign nations, how much greater propriety does there exist that we should extend this boon, if boon it be, to our fellow citizens, who are also our friends, our neighbors and our relations. That our denial to the people of our sister states to have the right of passage for themselves and their slaves would inflict on them a most serious injury cannot be doubted.’ The bitterness which usually characterizes border animosities admonishes us of the propriety of cultivating, by every just means in our power, that social intercourse with our neighbors which will be productive of mutual esteem and good will. Should we refuse them the privilege of taking their slaves through our state, would there not be danger that such refusal would engender feelings on their part not favorable-to a continuance of our happy Union? Am there reasons of sufficient magnitude to induce us to risk such consequences? I think not. Our interest, our duty, our love to our whole country, conspire to prove the propriety of allowing our fellow citizens of our sister states the right to travel through this state,’ either as emigrants or travelers, with their slaves, unless serious injury will result to ourselves by giving such permission. How injury can result to the people of this state, by-such a permission, I am entirely at a loss to conceive. On the contrary it might be shown, that, in many instances, it was to their decided advantage.
¶30It is, however, said that it is contrary to our policy to tolerate slavery. This objection is too broad. By the constitution and laws of the United States, the relation of master and slave is recognised as existing, and slaves escaping from their masters in a slave state, and fleeing to this, are to be surrendered up. By the act under which the defendant is indicted, and by numerous other acts, the relation of master and slave is fecognised. Slavery, then, to a limited extent, is sanctioned by our policy. But, in permitting emigrants and travelers the use of our highways, we do not thereby express any opinion upon the propriety of slavery. That question is still an open one, so far as it relates to its moral and political bearings. We simply determine that while the master and slave are peaceably passing through our state, we will so far recognise the relation, that we will not permit our citizens, during their transit, to interfere with that relation.
¶31In considering this question it may be well also to enquire what effect our refusal would have upon the slave himself. Would such refusal be injurious or beneficial to him ? It would not certainly tend in the slightest decree to emancipate him, nor would it lighten 1ns burdens. It would not prevent the master from emigrating or journeying. The master could still remove him to Missouri by taking a circuitous and tedious route [*477] to that state, without passing through our state, and merely subjecting the slave to a long and toilsome journey, probably on foot. Our refusal, then, would seriously injure the master, and not less seriously the slave. If, then, to grant to the citizens of ‘slaveholding states the right of passage through our state, with their slaves, will benefit both the master and the slave, and not injure us, what possible objection can there be to extending this privilege to them ?
¶32The 149th section of the criminal code, so far as it applies to harboring or secreting the slaves of citizens of our sister states, has implicitly sanctioned the law of comity, and by so doing the legislature has manifested a disposition to cultivate a spirit of harmony among the different members of the Union which it well becomes the courts of justice to imitate.
¶33Upon the whole I am of opinion that this section of the criminal code does not, when correctly construed and applied, trench upon the right of Congress exclusively to legislate upon the subject of fugitives from labor; and that, by comity, emigrants and travelers may pass through this state with their slaves, and every person who shall knowingly harbor and secrete any such slave, while in his transit, renders himself liable to the penalties of that statute.
¶34I am therefore of opinion that the judgment below should be affirmed.
¶35Judgment affirmed.