OPINION

Supreme Court, 23d Oct. 1807, present Woodward, Chief Justice

The motion of Elijah Brush, counsel for Richard Patterson [Pattinson], that a warrant issue to apprehend the bodies of Jane, a mulatto woman of about twenty years of age, and Joseph, a boy of about eighteen, who are now within this Territory, and the lawful property of said Peterson [Pattinson], has been considered by the court and was overruled. The opinion is as follows:

In the matter of Richard Patterson [Pattinson], a subject of his Britannic Majesty residing in the town of Sandwich in the county of Essex, in his Britannic Majesty's Province of Upper Canada,, who moves the court for a warrant to apprehend Joseph and Jane his slaves, now within this Territory.

This motion has been supported by the advocate for the applicant on three different grounds, on the principles of the law of nations, on the principles of the common law, and on the domestic regulations of this country.

First, It is contended that by the principles of the law of nations, where particular things are reciprocally recognized as subjects of property by the laws of any two nations, and particular articles, the property of a subject or citizen of one are accidentally found within the territories of the other, that they are, on being reclaimed, to be restored to the lawful proprietor.

Secondly, It is contended that on the principles of the common law it is an injury to the lawful proprietor of any article to deprive him of, and to withhold from him his property; that an alien equally with a subject, may hold personal property, and is therefore equally injured by the deprivation and withholding of it from him, and that for every injury there is, and ought to be according to the maxims of the common law, an appropriate remedy.

Thirdly, It is contended that both the United States of America and Great Britain recognized slaves as property, and as personal property on this continent; that by the treaty we are bound to respect and protect the subjects of his Britannic Majesty in the full enjoyment and use of their lawful property as well as our own; that justice requires the restoration of it, when it becomes. by accident within our limits; and that in addition to the common law, the Supreme Court of this Territory possesses by statute a power to issue all precepts necessary to the furtherance of justice, and therefore [is] bound to grant this warrant.

The first position relative to the law of nations may be and probably is both correct and just. Cases cannot perhaps readily be found within the United States, who are separated by a wide ocean from the nations of Europe, nor perhaps in Great Britain, who is also separated from the continent of Europe by the ocean. They are rather to be sought for among nations

on the continent of Europe, who have a common boundary by land. Such nations, for instance, are France and Spain. They are coterminous nations, and their boundary is a land boundary. They are separated by the Pyrenean Mountains. If a horse, an ox, a mule, a goat, a sheep, or other animal, the property of a farmer, or peasant dwelling on one side of the boundary, should stray across the boundary, and be found on a farm, a possession of another dwelling on the other side of the boundary, they would in all probability be reciprocally restored, and it is certainly perfectly just that they should be. The case of articles of property is however very different from that of persons. Those nations and all the nations of Europe, deny an obligation of restoring persons. It is not a part of the law of nations. The murderer, the traitor, the thief, the deserter from military service are all received by other nations, and they do not hold themselves bound to restore them when they are demanded. If it has been sometimes done, it has been as a matter of courtesy from one nation to another. It is regarded as a matter of favor, not as a matter of right.

The principles of the common law are equally inapplicable to the cases of persons. By the common law persons can not be the subjects of property. They can only become so by particular statute, and every such statute is itself unjust and in contravention of the rights of human nature. If the right of property can only exist by statute, the manner of protecting and sustaining it as a right of property must be regulated by statute also, and neither the principles of the law of nations or of the common law are strictly applicable to causes of this kind.

On the third position the fact must be admitted that both the United States of America and Great Britain recognize a right of property in persons on this continent, or in other words, a state of slavery. Great Britain, however, does not recognize this right within her European dominions, and the United States of America do not recognize it in all parts of their dominions. In two of the American States, those of Massachusetts and Ohio, and in this Territory of Michigan, with the exception of the right of British settlers, slavery is not permitted.

Great Britain also does not extend her courtesy so far as to admit a right of property in persons, or in other words a right of slavery, even where the right is established by law by other nations and countries. On the contrary, if a person is by the laws of any other country a slave, and can find his way into the European dominions, she refuses to restore him to the master, and liberates him. The case of James Somerset, decided by Lord Mansfield, and which was the case of a slave who had abandoned the service

of a Virginian master, fully settles this principle. It has been ever since supported, and is uniformly considered the law of that country,

Neither does an instance appear where Great Britain has provided for the restoration of slaves deserting from a foreign government into a part of her dominions in which she recognizes slavery, such, for instance, as Jamaica or Canada. It would seem, therefore, extremely singular, that she should ask of others what she is not willing to give to them.

Admitting it, then, as unquestionable that the principle of the English law as described by Lord Mansfield, is that a right of property can not exist in the human species, it only remains to inquire whether the same principle is to be received here.

The principle is certainly a just principle, for what would be the result if the contrary were admitted. A human being escaping from chains and tyranny could find no place in the whole earth to rest; go where he would the power and the arm of the tyrant would still reach him. Man, the monarch of the earth, would be able to find no place upon its surface where he could breathe the air of freedom. If the nation should possess this right, all others would be equally entitled to, and if Great Britain has the right to demand her slaves from a foreign nation, because she permits by her law a state of slavery in that part of her dominion from which he came, the Algerine may come upon the same principle to demand his slave, for his laws equally permit and sanction the state of slavery.

But I am compelled here to ask, has not my country, by permitting and sanctioning a state of internal domestic slavery, effectually denied me the privilege of saying that Lord Mansfield did say in England in the case of James Somerset, that a right of property cannot exist in the human species. In some parts of the United States as in some parts also of the British dominions a judicial character could not law down this position, and he must certainly feel a strong sense of shame for his country that she does not permit it; as on the contrary every Englishman feels, and must feel, a very just pride of country, when he reflects on the position laid down by Lord Mansfield. But in this part of the dominion, my country does enable me to lay down this position, and to act upon it with a very slight exception, and that entirely in fayor of British settlers, by virtue of a special treaty. In other respects her will is, there shall be neither slavery nor involuntary servitude in this Territory. I am therefore bound to say, and do say, that a right of property in the human species cannot exist in this Territory, excepting as to persons in the actual possession of British settlers within this Territory on the 11th June, 1796, and that every other man coming into this Territory is by law of the land a freeman unless he be a fugitive from law

ful labor and service in some other American State or Territory, and then he must be restored.

It is here a subject of inquiry whether the same sense of justice, if such it is conceived, which leads the American government to enforce the restoration of slaves fleeing from one part of their dominion where slavery is permitted by law unto another part where slavery is not permitted, absolutely is interdicted, ought not to extend the same principle to the slaves of others on this continent, the subjects of foreign powers.

This inquiry will tend to show how dangerous it is to admit even the smallest degree of injustice and oppression into a free government. It tends to demonstrate that nothing can be stable that is not just, that nothing can be morally harmonious and beautiful that is not perfectly, consistent with rectitude. The slave measure that we mete to ourselves we are taught that we should mete to others in similar cases.

But here our conduct does not differ from that of the opposite nation. While she compels her own subjects to restore [to] one another their respective slaves, she does not restore the slaves of the American master. Her laws do not provide for the restoration of the American military deserter, while she is always willing to reclaim her own. There is therefore a want of reciprocity, and this can only be remedied by withholding what she withholds, or otherwise by reciprocal provisions, either on the part of the two nations, or on the part of the two adjacent local governments, with the approbation of their respective nations.

What would be the particular nature of the remedy if the right existed, it is not necessary to discuss. No doubt if the right existed, some remedy might appropriately be applied to redress the violation of it. The mode now attempted does not appear to be one which under any existing laws would be admissible. It is probable if the right is ever given the particular means of enforcing it will be specifically given with it. In this instance it is sufficient to overrule the present motion, and the motion is overruled.

CHARGE TO GRAND JURY

Fellow-Citizens of the Grand Jury, for the body of the Territory of Michigan: It is the privilege of a citizen of this republic, that he cannot be held to answer to a charge which involves his life, or is otherwise attended with infamy, without a previous investigation, and deliberate presentment of from twelve to twenty-four of the most respectable inhabitants of a district, within

which the offense may have been alleged to have been committed. This is a beautiful feature in the system of free and republican government. In countries differently situated, and under governments of an opposite character, the subject may be summarily, and even secretly, arrested; and concealed from the inquiries of his friends, and of the world. In such countries, and under such governments, integrity and innocence may be made the victims of guilt, and of malignity, and virtue and patriotism become a lamentable sacrifice to inquity and tyranny.

It is to you, gentlemen, that the institutions of our country confide the double trust of at once, defending the rights of the good citizen, and carrying the laws into execution against the bad.

You will thus, gentlemen, immediately perceive the magnitude and the importance of your trust. If any man shall ever, here, unjustly die, or otherwise be unjustly punished, by the hand of power, and the banner of tyranny and oppression wave upon our land; if the laws against vice and crime shall cease to be efficacious, and a virtuous and pious community be plunged into depravity and irreligion; it is to you, gentlemen, that the responsibility for the melancholy results must attach. They who constitute those essential organs of investigation, known in our land by the appellation of grand juries, must, previously, either have abandoned the protection of the good, and suffered them to fall the victims of their virtues, in the contentions of a barbarous and malignant world, or held out encouragements to the prevalence of vice, and the perpetration of crime, by relaxing the prosecution of the guilty, and suffering them to escape the just punishment which should await their offences.

For the faithful execution and correct fulfillment, then, of powers and of duties solemn in their character, and so awful in their results as those with which you are invested, does it not behove that not only your own exertions and prayers should be devoted, but that they should be accompanied with those of the whole community?

It will be obvious to you, gentlemen, that in the scale of your duties that which must possess the title to the highest rank is the protection of human life. Without this, of what avail are all other civil privileges, immunities or endowments?

It is, gentlemen, with the most poignant and sincere grief that I now give you in charge five cases of homicide within this Territory, arising between last and the present term of this tribunal, while your labors have been suspended. The respective documents and details will presently be laid before you by the proper prosecuting officers for your immediate and most careful consideration. Having had, at the last term, a mournful occasion, to explain in