
    Bracken vs. Steamboat Gulnare.
    APPEAL FROM LOUISVILLE CHANCERY COURT.
    1. The owner of a slave domiciled in the state of Missouri, and having his slave there, cannot maintain a suit against a steamboat for the value of a slave escaping on such boat, on the ground that the boat passed through waters of Kentucky with the slave on board, under the statute of Kentucky. {Revised Statutes, 143, 4.)
    2. To render the boat liable under the statute the slave must be conveyed, or attempted to be conveyed, out of this state, or from one part of the state to another, and this when the slave is taken on board of a vessel in this state, or at any place out of the state.
    3. The statute was not intended to embrace slaves who were in no way subject to our laws at the time of their escape.
    The facts of the case are stated in the opinion of the court. Rep.
    
    
      Monroe Sf Logan for appellant—
    The Court of Appeals, in the case of Edwards vs. Vail, 3 J. J. Marshall, 595, decided, under the statute of 1824, that the steamboat was not liable for removing the slaves “out of the limits of this state.” The language of that statute is quoted in the opening paragraph of the opinion, and the cause decided upon the fact that the slave was taken on board the boat at Jeffersonville.
    Upon first reading this case, and the case of Church ■vs. Chambers, 3 Dana, we concluded that the first named case was decided before the statute of 1828 was passed, but find no reference to that statute in the case. We do not know why it is, how it was, that the statute of 1828 was overlooked or ignored.
    In the case of Church vs. Clumbers, 3 Dana, 274, decided in 1835, the court refer to both statutes, and in virtue of the language of that statute decide that a slave taken on board from the Indiana shore is taken in violation of the statute, and the owners or officers of the boat are liable.
    
      The language of that act, to which reference is made, and under which the liability is fixed, is as follows; “The liabilities under said act, (the act of ‘ 1824,) shall occur wherever the person of color shall ‘ be taken on board any steam vessel from the shores 1 of the Ohio river opposite to this state, and the like li- £ ability shall occur for landing, or suffering them to £ go on shore, within as without this state.”
    It will be seen that this statute is an advance in favor of slave owners, and an improvement upon the statute of 1824, and the decision in 3d Dana an advance in the same way, and an improvement upon the decision in 3d J. J. Marshall.
    
    It will be contended, no doubt, that this cause turned upon the question of jurisdiction of Kentucky over the Ohio river. But upon close examination of the case it will be found that it was not. The court says, (page 279;) “Now although the local laws of Kentucky cannot, proprio vigore, operate extra territoriam, except so far as they may bind the citizens of Kentucky, as citizens, wherever they may be, nevertheless they may operate on all persons, on so much of the Ohio river as is within the jurisdictional limits of Kentucky, if they are consistent with the guarantee of free and common navigation and commerce. * * * * “And, therefore, Kentucky had a right to declare that the abduction of slaves, or the deportation or transportation of them in vessels on the Ohio river, within her jurisdiction, without consent of owners, and to their damage, should be unlawful. *’ * * * ' “Nor do the statutes of 1824 and 1828 interfere with the rightful power of the federal government to regulate commerce and navigation among the several states.”
    It might be presumed that the court in that case placed some stress upon the fact that the contract to take the slaves mas made in Kentucky. But the liability was not fixed from that fact, but from the fact that Kentucky had a right to enact and enforce the statute. On page 278 the second proposition decides, “the Ohio river, as far as it is the boundary of this state, is within its jurisdiction. The eleventh article of the compact with Virginia, only guarantees to the citizens of all the states ‘free and common use and navigation of the river.’ ”
    The liability then was not fixed upon the owners of the boat because of the jurisdiction of Kentucky over the river.
    The j urisdictioh of Kentucky over the Ohio river was not the basis of the decision, because the slaves did not get on the boat from the water, but the presumption is inevitable that they stepped from the Indiana shore to the boat. In that case the owners were held liable.
    But our Revised Statutes, page 143, section 3, goes still further, and advances and improves* upon the statute of 1828, and provides that the owner of slaves shall recover for “conveying or attempting to convey the slave thereon out of the state, or from one part of the state to another." * * * * “This section shall also apply where the slave is taken on board the boat •or vessel at any place out of this stated
    
    The plaintiff’s right to recover for the loss of his slave does not depend upon the question whether he was taken on board within this state; was he conveyed “from one part of the state to another,” in the language of the statute? The verdict of the jury decides that he was, and the statute decides that in such case the boat is liable. It is not material whether the slave was put on shore within or without this state; whenever he once got within the state the liability was incurred. The boat was near Kentucky when he was taken aboard. She was in Kentucky in a few minutes. The jury find that she “passed through the Kentucky waters with said slave." Was he not conveyed from one part of the state to another? I do not care, for the purposes of the present argument, whether Kentucky can give to citizens of other states the right to attach here, a boat found here, for a slave who had never been here, or not. It may she could. But my present intention is to show that the slave was on the boat in Kentucky, is lost, was conveyed “from one part of the state to another” through Kentucky waters, and out of Kentucky to Cincinnati.
    If the boy had been seen upon the boat at Louisville, would not the plaintiffs, under the statute, have had a right to attach, if it appeared that he made his escape from them, whether he made his escape on that boat or not? Most certainly they would. Then as we prove the boy was on the boat within a few miles of Kentucky, going to Kentucky, and the jury find that he passed through Kentucky waters, on the boat, it devolves upon the defendants to show that he was not on the boat when she reached Kentucky’s jurisdiction; otherwise the presump don is he remained upon her to her journey’s end. IfNhj^had been seen on the boat, within Kentucky jurisdiction, the liability would be beyond question. We prove he was on, and the jury find he was on, and whether got on within Kentucky jurisdiction,.or was only “conveyed from one part to another” of the state, the boat is as clearly liable as if he had stepped on board at Louisville.
    The portion of the opinion quoted from 3d Dana, page 279, does not confine the jurisdiction of the courts to the place uhere the slaves got-aboard. It-is nowhere intimated that if the slaves had got aboard at any point not on the Ohio river, that the boat would not be liable. But, as if intending to decide that the mere passing through her rivers would make the boat liable, they say: “Kentucky had a right to declare that the abduction of slaves, or the deportation or transportation of them in vessels on the Ohio river, within her jurisdiction, without the consent of the owners, and to their damage, should be unlawful.” There is a marked difference in the language here used, and the mere naked idea that the embarkation from the state of Kentucky, is alone to fix the liability.
    
      The language of the Revised Statutes means something. If it does not apply to this case, then it means nothing, “This section shall apply where the slave is taken on board the boat or vessel at any place out of this state.”
    
    If it is decided that it does not apply to this case, we know of no state of case to which it would be applicable.
    Would the right of appellant depend upon catching the slave on the boat? Certainly not. To prove him on is enough, and defendant must prove him off. The jury find he passed through Kentucky to Cincinnati, and the law presumes he remained on board. Then the liability of the boat is clear. She was caught and attached in Kentucky. To say that plaintiffs were citizens of Missouri, and were therefore not protected bythe statute, is not only ridiculous, but an argument against the constitution securing the same right to citizens of the several states.
    A reversal is confidently asked,
    
      C. W. Logan for appellee—
    This is a suit exclusively in rem against the steamer Gulnare, for the purpose of subjecting it specifically to an alleged statutory liability for conveying a slave out of the state into parts unknown. The petition is not a proceeding against any person for a personal common law liability; and if it were, it does not contain facts sufficient to make out a common law liability No person is made by plaintiffs a party defendant to the suit. The petition is framed upon the language of section 3d, chapter 7th, of the Revised Statutes. Under that section, (which applies, as we contend, to the Kentucky slaves alone,) the face of the petition is good. And if the facts alleged were sustained by the proof, the steamer Gulnare would be specifically liable to plaintiffs’ demand. But the statements of the petition are controverted by an owner of the boat, who has filed an answer herein; and those statements are not sustained by the testimony or special verdict. The radical averment contained in the petition is that the boat Guiñare conveyed out of the slate (of Kentucky) the slave Ambrose, but the testimony and the special verdict show that the plaintiffs resided at New Madrid, Missouri, and that the slave left his owners at New Madrid, and escaped upon the steamer Guiñare, a boat lying at the wharf' of New Madrid, and bound to Cincinnati on her trip from New Orleans to said city, and that said boat passed through the waters of Kentucky with said slave. It is true that the verdict seems to assume that the petition charged that the slave Ambrose left his owners at New Madrid, ¿yc., but the petition charges no such thing. The charge of the petition is in the language of the Kentucky statute, and that charge is not sustained by the special verdict, so that if the suit had been brought in a common law court against the person for a common law liability, the case stated on the face of the petition would, in the first place, not be a legal cause of action, and in the second place, if it were it would not be sustained by the proof. On such a petition a recovery for a common law liability could not be had under such proof. If the suit had been brought against the person it would be necessary to aver, knowledge or consent in the defendant, as well as a want of it in the plaintiffs — a tort would have to be shown by the averment of negligence or otherwise ; and it would have been-necessary to state that the slave was taken on board in Missouri, according to the fact, &c. If this had been done the testimony taken by defendant, showing that the plaintiffs in Missouri gave a general and standing verbal permission and authority to the slave to go where he pleased out of that state, would have defeated the action. (See on this point the depositions for defendant.) A general verbal authority to the slave to go where he pleased might very well be sufficient in Missouri to protect the owners and masters of steamboats from liability, even when they had actual knowledge of the slave being on the boat, whilst it might be necessary in Kentucky that the permission should be in writing; hence the importance of stating in the petition the state or place from which the escape is made. In this case the testimony does not show that the slave Ambrose was conveyed through the waters of Kentucky to Cincinnati, but we will suppose the fact to be as found by the special verdict, namely, that the slave literally did escape from New Madrid, Missouri, through the waters of Kentucky —that is, up the Ohio river — to Cincinnati. This fact, we insist, does not support the petition, nor come within the statute of Kentucky. The statute does not mean to give a remedy in rem, except where the slave is conveyed out of the state of Kentucky, or from the state of Kentucky. Passing through the state of Kentucky from another state does not create a lien, under a Kentucky statute, to protect the slave property of another state; the statute of Kentucky was designed to protect the slave property of Kentucky, and was addressed to the people of Kentucky. In terms it does not embrace the slaves of other states. There is no presumption that it was passed to operate extra-teri’itorially. The presumption is that it was intended to operate only within the limits of Kentucky. The laws of states have foi’ce only within their own limits, and are never enforced elsewhere except by comity. If the state of Missouri gave a lien, for the escape of Ambrose, against the steamer Guiñare, comity might require it to be enforced ; but comity does not require our courts to construe that the Kentucky statute was enacted to guard the slave property of Missouri. The section 264, article 3, of the Code of Practice, relates to this remedy for “the removal of a slave.” Does not this section of the Code apply to a “removal” from our own state ? Has it any reference whatever to another state ? It cannot be made to embrace the removal of a slave through Kentucky from another state.
    
    
      Section 3 of the Revised Statutes was taken from the acts of 1824 and 1828. The very title of the act of 1824 indicates that it does not apply to the slave property of other states. It is entitled “An act to prevent the masters of vessels, &c., from removing persons of color from this state.” The act of 1828 was simply an amendment of the act of 1824, and enlarges the liabilities of masters, &c., so as to include cases where the persons of color (spoken of in the previous act,) “are taken on board of any steam vessel from the shores of the Ohio river, opposite to this state, to the same extent as if taken on board from the shores or rivers within this state.” This amendment plainly and exclusively applies to Kentucky slaves, and makes it immatei’ial whether (when conveyed' out of the state,) they are received on board within the state, or from the shores of the Ohio river opposite to the state. The amendment was, doubtless, passed on account of the construction given by the Court of Appeals to the act of 1824, in the case of Edwards vs. Vail, 3 J. J. Marshall, 596. That case had decided that the act of 1824 did not apply even to Kentucky slaves when they were taken on board of a boat on the opposite side of the Ohio river. The amendment of 1828 protects Kentucky slaves even though they be taken on board from the shores of the Ohio river opposite to this state. The 3d section of chapter 7 of the Revised Statutes, takes but one step beyond the acts of 1824 and 1828, and that is, it gives a remedy for conveying a slave out of this state even “when the slave is taken on board of the boat or vessel at ■any place out of this state.” It is obvious, from the language of this section, taken in connection with former statutes, and the decision reported in 3 J. J. MarsAall, that it relates exclusively to Kentucky slaves taken from Kentucky. It is hardly reasonable to suppose that the Legislature of Kentucky meant to pass an act for the purpose of protecting the slave property of other states. The act of 1828 amended the act of 1824 only with a view to afford a larger protection of Kentucky slave property than already existed. Surely that amendment did not originate from a desire to help the other slave states of the Union. Had such been its object we should, have seen that the help was reciprocal.
    Consent in writing, under the Revised ¡Statutes, will relieve the steamboat from liability. If the slave of-another state is taken on board, say at New Madrid, Missouri,, where a writing may not be required, and is conveyed through Kentucky, on the Ohio river, how can it be expected that when the boat is in its transit through Kentucky, the master of the slave can here give his consent in writing. The Kentucky law does not attach in such a case. It cannot attach except when the slave starts from Kentucky; then the written consent might be given, but it could not be given whilst the boat, with steam up, is on the waves of the Ohio. The Kentucky statute was not passed for such a case. In the decision before referred to the Court of Appeals say, “Looking to the mischief which the legislature must have contemplated, and confining, the operation of the act to them, we must except from the operation of the statute the cases where colored persons are taken on board in other states and pass out of the limits of this state in their transit over our territory.” This decision seems conclusive of this case without anything farther.
    December 24.
   Judge Crenshaw

delivered tbe opinion of the Court.

This is a proceeding by attachment against the steamer Guiñare, instituted in the Louisville chancery court, under the provisions of the Revised Statutes, 143-4, to obtain satisfaction for the value of a slave named Ambrose, who escaped upon her from New Madrid, Missouri, in April, 1855. A jury was impannelled in the case, who found the following facts, which are, substantially, the facts proved in the cause:

1. That the plaintiff resides in New Madrid, Missouri.

2. That the slave, Ambrose, left his owner at New Madrid, as charged, without the knowledge or con•sent of the owner, and escaped upon said steamer, then lying at the wharf of New Madrid, and bound for Cincinnati on her trip from New Orleans to said city, and that the boat passed through the waters of Kentucky with said slave.

1. The owner of a slave domiciled in the state of Missouri, and having his slave there, eannot maintain a suit against a steamboat for the value of a slave escaping on such boat, on the ground that the boatpassedthro’ waters of Kentucky with the slave on board, under the statute of Kentucky. Revised Stai.,p. 143-4.)

3. That the value of the slave was $-1,000, and that the plaintiff had expended $100 in his efforts to recover him. The chancellor dismissed the petition, and the plaintiff has appealed to this court.

The third section of the law above referred to, reads as follows': “A steamboat, or any other boat or vessel, shall also be liable to indemnify the owner of any slave for any damage’he may sustain by reason of the conveying, or attempting to convey, the slave thereon out of the state, or from one part of the state to another, without the consent, in writing, of the owner of the slave, or unless the owner, or person having the rightful control of the slave, be also a passenger on the boat or vessel. This section shall also apply, when the slave is taken on board of the boat or vessel at any place out of this state.” The fifth section gives a lien upon the boat in such case., ■and authorizes the proceeding adopted in this suit.

The only question deemed important to decide is, whether the plaintiff, he and 'his slave being domiciled in the state of Missouri at the time of the slave’s escape, can maintain this suit, simply because the boat passed through the waters of Kentucky with the slave. We think he cannot.

This suit is against the boat by attachment, by virtue of the foregoing provisions of the Revised Statutes, and not a suit against the owners, captain, or any of the crew, for the recovery of damages in personam for the injury done to the plaintiff in taking and carrying away his slave. No person is made defendant, but the suit is simply in rem — against the boat.

It was, doubtless, the primary object of the legislature, in the enactment of the law above adverted to, to protect the slave owners of our own State. Still, the legislature should be regarded as having intended to protect the owners of slaves, sojourning with them in this state, though not residents thereof, and also as having, intended to protect the owners of slaves who might reside in another State, and whose slaves might, at the time of their escape, be permanently or temporarily within our state ; and the law should be construed to embrace such states of case. But we do not believe that the legislature intended to afford the remedy of the enactment to the citizens of another state, whose slaves do not escape from this state, but from a state in which both the owner and slaves reside, and in which they are at the time of escape, simply because the slaves, after escape, may pass in a boat up the Ohio river, over which this state has jurisdiction.

2. To render the boat liable under the statute the slave must be conveyed, or attempted to be conveyed out of this state, or from one part of the state to another; and this, when the slave is taken on board of a vessel in this state, or at any place out of the state.

According to said third section, the slave, escap - ing, must be conveyed, or attempted to be conveyed, out of this State, or from one part of the state to another, &c., and this not only when the slave is taken on board of a vessel in this state, but at any place out of the state. The town of Weston, Missouri, is a place out of this state. Suppose a slave escapes from his owner in Weston, Missouri, where they both reside, on board a steamboat, destined from that port to Cincinnati, is it reasonable to construe our statute as applying to such a case, because the boat passes up the Ohio river with the slave, and, therefore, may be said in a certain sense to convey the slave from one part of the state to another? Certainly not.— Our law was not intended to meet and provide for such a case. And the state of ease presented in this controversy is precisely similar. If the owner and his slave be domiciled in this state, or be temporarily sojourning here, or the slave alone, have, at the time of his escape, his abode here permanently or temporarily, it matters not at what place he may be taken on board the boat upon which he escapes, provided he be taken out of the state, or from one point to another in the State; and, in such case, the passing of the vessel with a slave up, or down, the river, to another point in, or out of this state, ought to be regarded as carrying the slave out of the state, or from one point to another in the state, as the case might be, and so be embraced by the statute. But such was not the case in the present controversy.

3. The statute was not intended to embrace slaves who were in no way subject to our laws at the time of their escape.

Had it been shown in this case that the slave had ever been landed upon our shores, and again taken on board and conducted off, it would seem that the statute might apply, and the boat be subjected for his escape. It might not appear to be unreasonable to construe the statute to embrace such a state of case. But whether the statute would, or not, embrace such a case, we do not decide, because it is not necessary. We have no doubt, however, that the legislature did not intend the statute to operate in reference to slaves who, at the time of escape, are in no way subject to our laws, and do not become so, except by simply passing in a boat up, or down the Ohio river.

Wherefore, the judgment is affirmed.  