This section reprints Ohio v Birney, 8 Ohio 230 (Dec 1837), a criminal case decision.
Abolitionist James G. Birney (1792-1857) had been arrested in Ohio. The charge was aiding and abetting a fugitive slave.
As his defense attorney, Birney retained Salmon P. Chase (1808-1873). Chase had written a three-volume compilation of Ohio law in 1835, and was the authority.
In the local court, Birney was convicted. He appealed to the Ohio Supreme Court.
His legal points on appeal as prepared by Chase, were in three parts. They were:
(a) slavery is unconstitutional, so
(b) Birney couldn't have harbored a slave (as it is a non-existent status in law) and
(c) certainly not "knowingly."
Reprinted below are the 1837 narrative, the defense brief, and the decision of the Ohio Supreme Court. It unanimously ruled in Birney's favor, in Ohio v Birney, 8 Ohio 230 (1837). An earlier precedent to the same effect is Windsor v Jacob, 2 Tyler 192 (1 Vermont Annot Rep, Aug 1802) (ruling that nobody can be held a slave; a contract for slavery is inadmissible).
State of Ohio v Birney
8 Ohio 230 (Dec 1837)
[Synopsis] An indictment for harboring and secreting a mulatto slave is bad, unless it aver that the accused knew the person harbored was a slave.
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This was a writ of error [appeal], reserved in the county of Hamilton.
The plaintiff [Birney] in error [filing this appeal] was indicted for harboring and concealing a fugitive female colored slave.
The indictment contained nine counts, in which the offense was variously set out—some of the counts specifying more or less of the particulars of the case, four of them charging that the defendant harbored the slave, well knowing that sbe was a slave and a fugitive from service.
The first count, omitting the form of introduction and conclusion, was in these words:
"That James G. Birney, on March 1, 1837, and for a long time
Previous thereto, to wit, for six months, at the township aforesaid, in the county aforesaid, did unlawfully harbor and secrete a certain mulatto girl by the name of Matilda, the said Matilda then being a slave and the property of one Larkin Lawrence, contrary to the form of the statute," etc.
The record shows that, at the trial of the cause, the counsel for the traverser [Defendant Birney] excepted to four different positions ruled by the [trial] court.
1. The [trial] court ruled that it was competent for the prosecution to prove that the person harbored [Matilda] was the property of Larkin Lawrence.
2. The court refused to charge the jury that the [Northwest] ordinance [of 1787] and constitution of Ohio precluded the existence of slavery within her territorial limits so effectually as that no proof could be received, in her judicial tribunals, that such a condition existed in the state.
3. The proof for the prosecution having shown that the alleged master of Matilda brought her, under his own charge, in a steam-boat, to the Cincinnati landing, on the Ohio river, wbere she remained until she left it for the service of the traverser [Defendant Birney], the [trial] court refused to charge the jury, that by the operation of the ordinance and constitution upon the facts, Matilda became emancipated.
4. The [trial] court refused to instruct the jury that it was incumbent on the prosecution to produce and prove the constitution and laws of the state, establishing the condition of slavery under which Matilda was claimed to be the slave of L. Lawrence.
The jury found the traverser [Defendant Birney] guilty on the first count, and not guilty on all the others. The court adjudged him to pay a fine
of $50, the utmost [maximum] penalty of the law, and the costs of the suit—to reverse this judgment the writ of [alleging] error [by the lower court] was brought [to the Ohio Supreme Court].
The errors assigned [alleged] were, the first common general assignment, that the judgment was against the plaintiff in error, when it should have been for him, and, in addition, the errors indicated by the bills of exceptions.
Chase's Legal Brief for Defendant Birney S. [Salmon] P. CHASE, for the plaintiff in error [defendant Birney]:
The count, in the indictment of which the defendant was found guilty, charged that he "unlawfully harbored and secreted a certain mulatto girl by the name of Matilda, then being a slave and the property of one Larkin Lawrence."
The [1804] act, under which the prosecution was instituted, makes it a penal offense to
"harbor or secrete any black or mulatto person, being the property of any person whatever."
I maintain that it is impossible, in Ohio, to commit the offense of harboring, or secreting a person being the property of another person.
I maintain that the relation of owner and property, as existing between person and person [untermenschen], has, or can have, no [constitutional] existence in this state; and I maintain these propositions
as the inevitable results of a sound interpretation of the constitution of Ohio; and
as in full harmony with every provision of the constitution of the United States, and
of the ordinance of 1787.
If I can establish these propositions as I maintain them, it must follow that so much of this act of 1804, as inflicts a penalty for violating a relation which can not constitutionally exist, must be repugnant to the constitution, and therefore void.
And, certainly, no argument is needed to prove that the relation of owner and property, as between man and man, can not exist under the constitution of Ohio. This instrument declares
"that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
It also declares as a direct consequence of these fundamental truths,
"that there shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes;"
and that
"no alteration of the constitution shall ever take place, so as to introduce slavery or involuntary servitude into this state."
From these extracts [quotations], it appears, that the one principle which the framers were especially anxious to make
prominently conspicuous, and to surround with safeguards the most impregnable, was the equal freedom of all men; and the one thing which they sought to brand with deepest reprobation, and to exclude forever from the institutions of the state, was the slavery of man to man.
It can not be doubted, then, that were Ohio a distinct and independent nation, no such relation as owner and property could exist, as between man and man; nor could any law, recognizing and protecting such a relation, be of the least validity.
But Ohio is not a separate and independent nation. We regard the federal constitution and the ordinance of 1787, as of higher authority than our state constitution. If these recognize this relation and sanction it, state legislation may constitutionally recognize and protect it.
We must examine, then, and endeavor to ascertain the import of the provisions in the ordinance, and in the constitution of the United States. The provision in the ordinance is in these words—
"any person escaping into the same" (i.e. the Northwest Territory) "from wbom labor or service is lawfully claimed in any one of the original states, may be lawfully reclaimed and conveyed to the person claiming his or her labor or service, as aforesaid."
The [Article IV § 2.(3)] provision in the federal constitution was obviously taken from that in the ordinance, and is as follows:
"No person, held to service or labor in one state, under the laws tbereof, 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 labor or service may be due."
In order to arrive at the true import of these provisions, it is proper to refer to the history of the country at the time when they were incorporated, first into the fundamental compact of the territory and people northwest of the Ohio with the states and people of the Union; and soon after, into that of all the states with each other.
It was then acknowledged that, in some of the states, institutions existed so incompatible with slavery, that the slave who migbt escape into them would become a free man the moment he should enter their territory, while in other states, slavery was recognized and protected by fundamental law and legislative enactments. This state of things is implied in the constitutional provision just cited.
Institutions must have existed in some states, by the operation of which, the servant escaping into them, was discharged from his involuntary service, for otherwise this claim would have been nugatory.
And Mr. [James] Madison,
-in the course of the debates in the convention of Virginia [on whether to ratify the U.S. Constitution], speaking of the condition of things tben existing, says:
"At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws."
The slaveholding states were apprehensive of the losses they might sustain in consequence of this state of things, and all dreaded its consequences to the Union.
Ed. Note: See the well-reasoned, detailed, similar analysis, by Lysander Spooner, Unconstitutionality of Slavery (1845 and 1850), pp 67-73 and 279-289.
To obviate the apprehended evil, the clause, which has just been cited, was introduced into the constitution as a clause of compact between the states, similar to the clause which had been just before inserted in the ordinance [of 1787], and to be a clause of compact, between the original states and the people and states of the northwest territory.
It was cautiously framed, so as to avoid all recognition of the condition of slavery, or the relation of ownership between man and man.
It left the several states free to create, or continue, or abolish such relations between individuals within their several territories as they pleased, just as they had been under the articles of confederation.
It required each state to deliver up servants escaping into its territory from other states, to their lawful masters—to deliver them up as servants, not as slaves—far less as property.
It bound each state to recognize and protect, in a particular class of cases, the relation of master and servant, as established by the laws of sister states, but no other additional relation.
Ed. Note: Virginia Senator James M. Mason would soon admit that no such laws existed anywhere in the South. Cong Globe, 31st Cong, I Sess, App (19 Aug 1850), pp 1583-1584.
It left the whole responsibility of all other relations upon the states which might establish or continue tbem.
I am very confident that this construction exhibits the true import of this constitutional provision, and the more confident because the very terms of the provision seem to exclude every otber interpretation.
For who is to be delivered up? Any person held to service and escaping.
Are slaves and human chattels alone held to service? Surely not.
To say nothing of servants for hire, there is [then in that era] the great [large] class of apprentices who are "held to service" in the strictest sense of the terms, and are yet neither slaves nor property. It can not be denied tbat the provision embraces the case of an escaping apprcntice, and if so, all argument, whether or not it recognizes property as a relation of one human being to another, must be at an end. It [the clause] recognizes no such relation. On the contrary, the exact reverse of such recognition is strongly implied.
Another argument tbat no such recognition was intended, is to be found in the statute books of that period. I refer the court especially to the statutes of Virginia. Tate's Digest, 25, 476, 491.
Ed. Note: Full citation: Joseph Tate, A Digest of the Laws of Virginia Which Are of a Permanent Character and General Operation: Illustrated by Judicial Decisions: To Which is Added an Index of the Names of the Cases in the Virginia Reporters (Richmond: Shepherd and Pollard, 1823)
It will be found that those [Virginia] statutes describe three classes
of persons held to service—apprentices, servants, and slaves; and that the right of recapture is provided for in regard to each class.
It could not be said then that a [constitutional] statute of Virginia, providing for the recapture of persons held to service, would contain any recognition of the relation of property as between persons. It would only recognize a general relation which might exist, indeed, in connection with that otber relation, but might also exist independent of it.
If I am correct in this construction of the [federal] constitution and the ordinance [of 1787], it follows that there is nothing in eitber which requires or authorizes the legislature of any state to pass laws for the protection of the [alleged] right of property in human beings.
Ed. Note: The U.S. Supreme Court would soon agree with this analysis, in Prigg v Pennsylvania, 41 US 539; 10 L Ed 1060 (1842).
Every purpose intended to be answered by the provisions in either instrument, may be effectually accomplished without any such degradation of the non-slaveholding states.
And if so, the provision of the act under which this indictment was found, abhorrent as it is to the whole spirit of our institutions, and to the express provisions of our constitution, must be void.
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The second question presented by the record, and the only remaining question to which I wish to call the attention of the court, is this: Was the woman, Matilda, at the time sbe was employed by the defendant [Birney] as a servant, the slave of Larkin Lawrence?
Admitting, for argument's sake, the prosecution to be constitutional, was the offense, charged in the indictment, actually committed?
Now, it is certain that slavery, wherever it exists, is a creature of positive institutions [enacted laws]. It has no support in natural right; on the contrary, it is in direct derogation of natural rigbt. Before slavery can be [can exist], natural right must be overborne by force, custom, or legislation.
Ed. Note: The precedent of Somerset v Stewart, Lofft 1-18; 20 Howell's State Trials 1, 79-82; 98 Eng Rep 499-510 (22 June 1772), pages 80-82, had so ruled.
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Somerset is relevant "because the precedent had become part of American common law," says William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
In the language of the highest court in Louisiana, Lunsford v. Coquillon, 14 Martin, 401 [May 1824],
"the relation of owner and slave is, in the states of tbis Union, in which it has a legal existence, a creature of the municipal law."
Ed. Note: The U.S. Supreme Court in Prigg v Pennsylvania, 41 US (16 Pet) 539, 611; 10 L Ed 1060 (1842), said likewise, declaring that "the state of slavery is a mere municipal regulation, founded upon and limited to the verge of the territorial [jurisdic-tion's] laws. This was fully recognised in Somerset's Case . . . ."
In the still more emphatic language of the Supreme Court of Mississippi, Harvey et al. v. Decker and Hopkins, Walk. 36 [1 Miss 36, 42-43 (1818)],
"Slavery is condemned by reason and the laws of nature. It exists, and can only exist, through municipal regulations; and in matters of doubt, is it not an unquestioned rule, tbat courts must lean in favorem vitœ et libertatis?"
It is also certain that the municipal regulations of no state have proprio vigore, any extra territorial force.
"There is no doubt," says Chancellor Kent, "of the truth of the general proposition, that the laws of a
country have no binding force beyond its own territorial limits, and their authority is admitted in other states, not ex proprio vigore, but ex comitate, or in the language of [Ulricus] Huberus, 'quatenus sine prejudicio indulgentia fieri potest.'"
Ed. Note: Full citation: James Kent (1763-1847), Commentaries on American Law (New York: O. Halsted, 1826-1830, 1832, 1836)
It is also certain that
"no nation is under any obligation to give effect to the laws of anotber nation, which are prejudicial to itself or its citizens; that in all cases each nation must judge for itself what foreign laws are so prejudicial or not, and it is only in cases not so prejudicial that a spirit of comity and a sense of mutual utility ought to induce every nation to allow full force and effect to the laws of every other nation." [Judge Joseph] Story [1779-1845] on Confl. of Laws, 75.
Ed. Note: Full citation: Joseph Story [1779-1845], Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments (Boston: Hilliard, Gray, and Co., 1834)
It is also undeniably true that in all enlightened nations, wbicb do not tolerate slavery, the laws of other states in which it is tolerated, are held to be so prejudicial to the non-slaveholding states and tbeir citizens, and so repugnant to the spirit of their institutions, that slaves held under such laws, cease to be slaves the moment they come within their territories.
"It has been decided that the law of England abhors and will not endure the existence of slavery within the nation; and consequently, as soon as a slave lands in England he becomes, ipso facto, a free man, and discharged from the state of servitude."
So that the fervid exclamation of [William] Cowper [1731-1800] is, in, truth, an undisputed axiom of English law:
"Slaves can not breathe in England; if their lungs
Receive our air, that moment they are free:—
They touch our country, and their shackles fall.
That's noble!—"
So also in France.
"That such is the benign and liberal effect of the laws and customs of that country," is declared by the highest court of Louisiana. Marie Louise v. Mariot, 8 Martin, 375 [1836].
It is then not to be questioned that the comity of nations has in no instance, induced any enlightened state to tolerate the slavery, created by the laws of another state, within its territory.
On the contrary, it has been uniformly held by the tribunals of slaveholding states, tbat slaves, permitted by their masters to reside within the limits of non-slaveholding states, become free, through the operation of tbeir laws. 14 Martin, 401; 2 Marsh. 467; Gilman (Va.), 143.
It being true then that each nation and state must determine for itself to what extent it will admit, upon the principle of comity, the laws of other nations and states to operate within its limits,
it remains to inquire, so far as the present question is concerned, how far the State of Ohio admits, upon that principle, the operation of laws that sanction [provide for] slavery. And the scope of this inquiry is very limited.
We have but to turn to the ordinance [of 1787], and we find the fundamental and unalterable compact, between the original states and the people and states of the Northwestern Territory,
that there shall be neither slavery nor involuntary servitude within that territory, forever.
Turning to the constitution of the state [of Ohio], we find the same express interdict reiterated, in the same terms, by the voice of the people.
The ordinance then, and the state constitution, expressly prohibit the application of the principles of comity to cases of this description.
There is an excepted class of cases, it is true—excepted in the ordinance and excepted in the constitution of the United States, which is paramount to the state constitution. But upon every slave brought within the limits of Ohio, and not embraced within the strict terms of the exception, this great interdict operates with unbroken force.
"Independent of the provisions of [Article IV § 2.(3) of] the constitution of the United States," says Judge Story, "for the protection of the rights of masters in regard to domestic fugitive slaves, there is no doubt that the English [anti-slavery] principle pervades the common law of the non-slaveholding states in America; that is, foreign slaves would no longer be deemed sucb, after removal thither." Story on Conflict of Laws, 92.
Ed. Note: Abraham Lincoln cited this concept in Speech at Peoria (1854), pp 221-222.
The courts of this state then are tied up [precluded] from deciding any person to be a slave, unless that person falls strictly within the [erroneously alleged] exception of the federal constitution. Tbey have nothing to do with thé principles of comity.
What then is that exception? What persons compose that unfortunate class, whose fetters can not be broken by the spirit of our state institutions? The clause [allegedly] creating the exception has been already cited [p 233, supra].
It [that Article IV § 2.(3) clause] provides that
no persons held to service in one state, under the laws thereof, escaping into another, shall by any law or regulation therein, be discharged from such service.
Persons held to service in one state, and escaping into another, then, compose the class which are not to be enfranchised by the operation of the ordinance and our state constitution.
Was the woman Matilda a person of this class? Was she held to service in one state, and did she escape into another? Plainly not.
At the time she left the individual [Larkin Lawrence] who claimed to be her master, she was within the territorial limits of Ohio, by the consent of that individual.
If she had ever been a slave, she had ceased to be such that moment when she was brought by Lawrence within
these limits, and she had power to go whithersover she chose. Her act in leaving Lawrence, under these circumstances, was in no just sense of the term, an escape. It was the first exercise of that freedom, which the constitution of Ohio had conferred upon her.
I am aware that some decisions can be found which maintain that slaves, traveling with their masters through free states, will not become free; but these decisions, so far as I have become acquainted with them, were made by the courts of slaveholding states, under no solemn obligation to maintain the constitution of the non-slaveholding states, to which they denied, in these cases, its legitimate effect; and I look in vain for any warrant for such decisions.
Where is the authority for adding to the class of fugitive servants [alleged] excepted by the federal constitution from the otherwise inevitable operation of free institutions, another class, namely, that of slaves traveling with tbeir masters?
The constitution of the United States declares that the provisions of the state constitution shall not affect the condition of servants escaping from the other states into Ohio, and the state constitution yields to the paramount authority [supreme law] of the federal constitution.
And then some [pro-slavery] judge decides that the state constitution shall not affect the condition of slaves traveling through Ohio with their masters. Shall the state constitution yield to this decision? Plain common sense, fortified by every principle of sound construction, answers no, and must prevail.
It follows, then, that at the time the woman Matilda was received into the service of the defendant [Birney] she was not a slave, or the property of any person, and of course that the offense charged has not been, in fact, committed.
No argument was submitted for the state.
Judge Wood delivered the opinion of the [Ohio Supreme] court:
The statute upon which the indictment is predicated enacts,
"that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars."
We are first called to consider whether, under this enactment, the indictment is sufficient?
It is required that every indictment shall have a precise and sufficient certainty. The omission of a word of substance is fatal. 2 Haw. P. C. chap. 25, sec. 4.
Here the plaintiff in error [Defendant Birney] is charged with harboring and secreting a certain mulatto
girl, by the name of Matilda, the property of L. Larkin. There is no averment that the plaintiff in error [Defendant Birney] knew the facts alleged, that Matilda was a slave, and the property of L. Larkin, or of any other person; and such is not the legal inference in a state wbose constitution declares that all are born free and equal, and that there shall be neither slavery nor involuntary servitude within its limits, except as a punismment for the commission of crimes.
On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error [defendant Birney], of this material fact, was an ingredient necessary to constitute his guilt. This knowledge sbould have been averred in the indictment, and proved on the trial, for, without sucb knowledge, the act charged as a crime was innocent in its character.
We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. "Ignorantia facti doth excuse, for sucb an ignorance, many times, makes the act itself morally involuntary." 1 Hales P. C. 42.
It is true that the statute, upon which the indictment is founded, omits the scienter, and the indictment covers all the facts enumerated in that statute. But tbis is not sufficient; it can not be assumed tbat an act which, independent of positive enactment, involves no moral wrong, nay, an act that in many cases would be highly praiseworthy, should be made grievously criminal, when performed in total unconsciousness of the facts that infect it with crime. This court has determined differently [i.e., that scienter is required].
In the case of Anderson against the state, 7 Ohio, part 1, 255, the plaintiff in error [that defendant] was indicted for uttering and publishing forged certificate of deposit, without averring his knowledge of such forgery. The statute under whicb the indictment was found does not, in express terms, make this knowledge a constituent of the crime. Nevertheless, the court held that the criminality could not exist without the knowledge, and that an indictment [which] did not aver it was defective.
That case runs upon all fours with [parallels] this, and the further investigation of the principles upon which it is based confirms the court in the conviction that it is correct.
This judgment [conviction of Birney] must be reversed for tbis cause, and it tbus becomes unneceasary to decide upon the other points, so laboriously argued for the plaintiff in error [Defendant Birney], and of a character too important in their bearing upon the whole country to be adjudicated upon without necessity.
Ed. Note: Chase had published a three-volume compilation of Ohio statutes in 1835, and was thus a recognized law expert.
He later became U.S. Senator from Ohio, 1849-1855; Governor of Ohio, 1855-1859; U.S. Senator, 1861; U.S. Secretary of the Treasury, 1861-1864; and Chief Justice of the Supreme Court of the United States, 1864-1873.
For analysis of his background and judicial views, see Prof. Harold M. Hyman, The Reconstruction Justice of Salmon P. Chase (Lawrence: University Press of Kansas, 1997).
See also Salmon Portland Chase, Anti-Slavery Addresses of 1844 and 1845 (London: Sampson Low, Son and Marston, 1867, reprinted by NUP, 1969).
For more background, but not necessarily such competent court analyses, see, e.g., Prof. Paul Finkelman, "International Extradition and Fugitive Slaves: The John Anderson Case," 18 Brook J. of Internn'l Law 765-810 (1992); and "The Anderson Slave Case and Rights in Canada and England," in Louis A. Knafla and Susan W.S. Binnie, eds., Law, Society, and the State -- Essays in Modern Legal History (University of Toronto Press, 1995), pp 37 and 72.
What is not mention in this article, is that Matilda's owner was also her natural father. A busy man.