Burnett, J.
The petitioner, Charles A. Stovall, states, substantially, that he is a citizen of the State of Mississippi; that he is the owner of Archy, a slave, and as such entitled to his custody; that said slave has escaped from the petitioner, and is now in the charge of one James Lansing, who detains him in the city-prison of Sacramento; that Lansing has no legal authority to detain said slave; and that petitioner desires immediately to remove said slave from this State to the State of Mississippi. The petitioner then prays that said slave may be returned to his custody.
The material facts of the case, as shown upon the hearing, were substantially these:
The petitioner had been in delicate health for some five years, and, in the spring of 1857, determined to make the trip to California, across the Plains, and to bring Archy, who was a fainily negro servant, nineteen years of age, with him. The petitioner stated that he was going to California for his health; that that was the grand object of the trip; that he did not intend to remain in this State but a short time, not more than eighteen months, and then to return home by water. The petitioner left his wagon and team in Carson Valley, because his oxen were not in a condition to cross the mountains. He also purchased a rancho in that valley. He and Archy arrived in this city about the second day of October last. After arriving in this city he hired out Archy for upwards of a month. Most of the wages earned by Archy were paid to him, but a portion was paid by the hirer to Stovall, after Archy became sick. While Archy was sick, about eighteen days, he was well taken care of by the petitioner. The petitioner opened and taught a private school for something over two months, in this city. During this time he often stated that it was his intention to return. There was proof going to show that the petitioner was short of means upon his arrival in this State. After the petitioner and Archy had been here upwards of two months, the petitioner placed Archy upon one of the river steamers, with, the intention and for the purpose of sending him to San Francisco, and from thence to Mississippi, in charge of an agent. The boy having escaped from the boat, the petitioner made affidavit before a justice of the peace, who issued his warrant commanding the officer to arrest Archy and [162]*162deliver him. to the petitioner. Under this warrant Archy was arrested by a policeman of this city, who delivered him to Lansing, chief of police, who detains him in the city-prison, and refuses to deliver him to the petitioner.
This case has excited much interest and feeling, and gives rise to many questions of great delicacy. It is not so much the rights of the parties immediately concerned in this particular case, as the bearing of the decision upon our future relations with our sister States, that gives to the subject its greatest importance. The responsibilities thus thrown upon the Court we must discharge to the best of our ability. In discharging this grave duty, we can say, in the language of a distinguished jurist, Mr. Justice Mills, (2 A. K. Marsh., 815,) that “we disclaim the influence of the general principles of liberty, which we all admire, and conceive it should be decided by the law as it is, and not as it ought to be.”
It is only our province to construe and apply the existing law. Whether that law be just or unjust, is a question for the lawmaker, not for the Courts. It is not necessary therefore to inquire whether slavery is or is not contrary to the law of nature. Our individual opinions upon this question are of no importance in this case. The institution exists by positive law, and that positive law is paramount, and must be enforced.
It must be concluded that, where slavery exists, the right of property of the master in the slave must follow as a necessary incident. This right of property is recognized by the Constitution of the United States. (Dred Scott v. Sandford, 19 Howard, 451.)
The right of property having been recognized by the supreme law of the land, certain logical results must follow this recognition. If property, it must, from the nature of the case, be entitledf so far as the action of the federal government is concerned, to the same protection as other property. If permitted to exist by the general law, then it must be protected by the general law, so far as that general law would protect any other property. No distinction can be made by this law between the different descriptions of private property.
If, then, in virtue of the paramount sovereignty of the United States, the citizens of each State have the right to pass through the other States, with any property whatever, are they not equally entitled to this right of transit with their slaves ? Is not this right of free passage a right that necessarily flows from the relation that the States sustain to each other, under the general bond of the Union ? We are one government, for certain specified purposes; and is not this right of transit across the territory of a sister State one of the necessary incidents of the purposes and ends for which the federal government was created ?
[163]*163That this right of transit with slaves through a free State exists, there would seem to be no reasonble doubt. But, as to whether it exists by constitutional right, or by the law of comity, there may exist different opinions. Mr. Justice Mills, in the leading case in Kentucky, of Lydia v. Rankin, (2 A. K. Marsh, 820,) sustains the right, under the law of nations. In the case of Willard v. The People, (4 Scam. Rep., 461,) the Supreme Court of Illinois decided that a citizen of Louisiana had the right to pass through that State with a slave. Mr. Justice Skates placed his decision both upon the law of comity and the Constitution of the United States; while Chief Justice Wilson and Mr. Justice Lockwood based their decision upon the law of comity. The Supreme Court of Missouri placed this right upon constitutional grounds, (Julia v. McKinney, 3 Mo. Rep., 272.) And I am not aware that this right has ever been denied to exist by the Supreme Court of any State, except by that of New York, in the case of The People v. Lemmon, (5 Sand., 711, 712.) In the case of The Commonwealth v. Aves, (18 Pick., 224,) the Supreme Court of Massachusetts notice the question, but express no opinion in reference to it. “ Our geographical position,” say the Court, “ exempts us from the probable necessity of considering such a case, and we give no opinion respecting it.”
If we place this right of transit upon the ground of comity, then it rests exclusively in the discretion of each State. (Story’s Con. of Laws, § 244; Bank of Augusta v. Earl, 13 Peters, 519, 589; Jackson v. Bullock, 12 Conn. Rep., 53; Collins v. America, 9 B. Mon., 569, 571; Forbes v. Cochrane, 2 Barn. & Ores., 471.) Slavery being regarded by the law of nations as a mere municipal regulation, founded upon and limited by the local law, no other nation is bound to recognize the state of slavery, as to foreign slaves, within its own territorial dominions, when it is opposed to its own policy. (Prigg v. The Commonwealth, 16 Peters, 540.) The rule that slavery, when judged by the law of nations, is a mere local institution, and one upon which that general law does not operate, would seem to be clear. From this principle it follows, that the right of transit with property, through the territory of a friendly State, secured by the law of nations, to the citizens or subjects of other States, applies only to such property as merchandise, or inanimate things, and not to slaves. The law of nations only protects such things as are generally recognized as property by civilized nations. Property, only recognized as such by the local law, from the nature of the case, cannot claim the protection of this general law. (The People v. Lemmon, 5 Sandford, 681; The Commonwealth v. Aves, 18 Pick., 217.)
Our conclusion is, that the right of transit through each State, with every species of property known to the Constitution of the United States, and recognized by that paramount law, is secured [164]*164by that instrument to each citizen, and does not depend upon the uncertain and changeable ground of mere comity.
It remains, then, to inquire whether the petitioner was a mere traveler through this State. Traveling is a passing- from place to place—the act of performing- a journey; and a traveler is a person who travels.
In the case of Julia v. McKinney, (3 Mo. Rep., 273,) Judge McGirk uses this clear and intelligible language : “ How length e character of immigrant or traveler through the State may last, cannot, by any general rule, be determined; but it seems that reason does require it should last so long as might be necessary, according to the common modes of traveling, to accomplish a transit through the State. If any accident should happen to the immigrant, which, in ordinary cases, would make it reasonable and prudent for him to suspend his journey for a short time, we think he might do so without incurring a forfeiture, if he resumed his journey as soon as he safely could. Something more than mere convenience or ease of the immigrant ought to intervene to save him from a forfeiture. Something of the nature of necessity should exist before he would or ought to be exempt from the forfeiture. If swollen streams of water, which could not be crossed without danger, should intervene; serious sickness of the family; broken wagons, and the like, should exist, there would be good cause of delay so long as they exist, if the journey is resumed as soon as these impediments are removed, provided all due diligence is used to remove them.”
In the subsequent case of Wilson v. Melvin, (4 Mo. R., 592,) it was held that the true test, as to whether the master violated the Constitution of Illinois in passing through that State, was whether he made any unnecessary delay in passing with his slave; and not whether the slave acquired any residence; and not whether the master became a domiciliated resident of Illinois. “in the case of Ralph v. Duncan, (3 Mo. R., 195,) it was held that the master who permits his slave to go to Illinois to hire himself out, commits as great an offence against the Ordinance of 1787 as he who takes his slave along with him to reside there. This decision is affirmed in the case in 4 Mo. R., 598. And in the latter case, the Court said : “And still less will it avail him, that the slave is not under his coercion while staying in Illinois. Under his own inspection, the slave would probably conduct himself with propriety; suffered to ramble, and undertake -work where he pleased, his opportunities to do mischief would be much greater.”
These rules were laid down by the Supreme Court of Missouri at a time when there was little or no excitement upon the subject, and when a more fraternal feeling existed among the citizens of different States, than has been lately manifested by many persons of extreme views in all portions of the Union. They [165]*165are, for that reason, the more entitled to our calm respect. They would seem to be founded upon a due consideration of the rights, both of the free and slave States. They are, in our view, eminently just and sensible in themselves, and susceptible of plain and practical application. The right of transit with slaves through a free State is secured to the owner; but this right must be exercised with a strict regard to the laws of the State through which the transit is made. The traveler must pursue his journey with no unnecessary delay; and to excuse any delay he may make, something of necessity must exist, such as “swollen streams, serious sickness in the family, broken wagons, and the like.” The cases mentioned are all of such a character that no foresight or precaution could prevent them; nor could such foresight do away with their effects when they should occur, and those are all facts susceptible of "easy proof.
The question then arises whether the conduct of the petitioner as a traveler comes within the qirineiples laid down. The theory of the petitioner is, that he was compelled to leave his wagon and team in Carson Valley, and remain here until the succeeding spring; that he was short of means, and that he and Archy were obliged to resort to business to defray expenses in the meantime, so as to be able to return home when he could dispose of his property.
Conceding, for the sake of the argument, all that is claimed by the petitioner, the excuse alleged does not, in our view, come within the rule. It was not such a case of necessity as to justify the interruption of the journey. The inability of his team to cross the mountains could not, perhaps, have been prevented; but the effect of this want could have been obviated by proper caution. True, he might have been subjected to some pecuniary loss by at once pursuing his journey; but this is amere inconvenience, and not such a circumstance as will excuse the delay. In the case from 3 Mo. R., 274, the same ground was urged; but it was held insufficient. The Court then said : “In this case, we see nothing in the nature of accident to prevent the owner from taking the plaintiff to Missouri immediately. The excuse set up is, that the owner was a widow, and might not have bad the means of immediate transportation of the slave to Missouri; that she was a new-comer in the country, and" might be poor, and, therefore, unable to do it; that some reasonable time ought to be allowed to her to provide a residence for herself and family, and that one month, in this case, is not too much. We are of opinion, that the excuse, to raise an exception, must be something more than the mere convenience or inconvenience of the owner.” And in the same case it was held, that when a person did not intend to introduce slavery into the State of Illinois, but did in fact do so, the slave was entitled to her freedom.
[166]*166But there is another important aspect in which this case may he viewed, and that is, to regard the petitioner as a mere visitor for health or pleasure. And it is conceived that this question is very different from the other, and depends upon the law of comity, and not upon constitutional right.
In the case of Strader v. Graham, (10 How. R., 93,) the Supreme Court of the United States held this language:
“Every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory; except in so far as the powers of the States in this respect are restrained or duties'and obligations imposed upon them by the Constitution of the United States.”
And in the case of the City of New York v. Miln, (11 Peters, 138,) it was held, “that all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive.”
In the case of Strader v. Graham, the owner of certain slaves, who were musicians, permitted them to go from the State of Kentucky to Cincinnati, in the State of Ohio, for a temporary business purpose. The slaves were there employed as musical performers, for hire, and then returned home, and afterwards sued for- their freedom. The Supreme Court of Kentucky held that they did not become free. (5 B. Monroe, 183; 8 B. Monroe, 635.) Upon writ of error to the Supreme Court of the United States, that Court held it bad no jurisdiction of the case, as no law of the Union was involved in its determination.
The question, whether a citizen of a sister State shall be permitted to remain a reasonable time simply as a visitor with his slaves, and under what conditions, is a question purely of local jurisdiction, and must depend upon the peculiar policy and situation of each State. It is insisted by the learned counsel for Archy that the question of comity is one for the Legislature to determine, and not for the Courts. This is certainly a very important power, and one that partakes of a mixed character. It is both legislative and judicial. It would seem almost impracticable for the Legislature to provide for all the instances where the law of comity must be applied. And until the Legislature does make provision,"the Courts are under the necessity of determining how far the rule of comity must apply. Such has been the practice of the Courts, as stated by Judge Story, in his Con. of Laws, page 25. So, also, Chief Justice Parker, in the case of Blanchard v. Russel, (13 Mass. Rep., 6,) says: “As the laws of foreign countries are not admitted ex proprio vigore, but only ex comitate, the judicial power will exercise a discretion with respect to the laws they may be called upon to sanction; for if they [167]*167should be manifestly unjust, or calculated to injure their own citizens, they ought to be rejected."
The same principle was asserted by Mr. Justice Lockwood, in his able opinion in the case of Willard v. The People, (4 Scam., 474.) After stating the principle, the learned Justice asks: “Is the case presented in the record of such a character as to appeal to the sound discretion of this Court to enforce the laws and institutions of a sister State ? In answering this question, regard should be had to the geographical position of Illinois, as well as to the relations we sustain to our sister States, confederated under the same general government."
We conceive it to be the right of the judiciary, especially in the absence of any legislation upon the subject, to determine how far the situation of this State, its policy, and condition, would justify us in giving effect, for a temporary period, to the laws and institutions of other States within our own territorial limits. This question, we conceive, should be decided with a sincere desire to extend to our fellow-citizens of other States, all the hospitalities consistent with our own just rights.
The geographical position of California, with respect to the other States of the Union, is peculiar. Such is our situation, that a citizen of a slave State will scarcely, if ever, wish to pass through this State with his slave, as a mere traveler, either for business or pleasure. But our position, climate, and productions, all naturally invite our fellow-citizens as visitors. When they come to visit us, for health or pleasure, shall they be permitted to bring their domestic servants with them, to attend upon them or their families as waiters ? The citizens of the free States can bring- their confidential servants with them—why should not the citizens of the slave States be allowed the same privilege ? It is true, the domestics in the one*case are hired servants, while in the other they are slaves. But should this induce us to exclude the one and admit the other? Persons who live in the slave States, and have long been accustomed to their own domestics, who constitute, in fact, a part of the family, very naturally desire, in making visits, to take these domestics with them, especially when they come as invalids seeking for health. It is our policy and duty not to clog the privilege of visiting us, with unnecessary restrictions. We look forward to the day when California will be frequented by visitors from all parts of the Union. We have every reason to expect it.
But this privilege should be confined strictly to mere visitors, and not extended to those who come for both business and pleasure. And the character of visitor should be determined solely by the acts of the person, and not by his declarations. In a case like this, we conceive the declarations of a party, or his intentions, constitute no tost and no evidence. The Supreme Court of Missouri was right, when deciding that, though a par[168]*168ty did not intend to introduce slavery into Illinois, but did in fact do so, he incurred a forfeiture of his slave. The fact of intention is often difficult to ascertain; it is the secret and invisible determination of the mind; and, unless shown by outward acts, cannot be known. On the contrary, the visible acts of a party are susceptible of easy proof, and the inquiry becomes simple and certain.
As acts must constitute the true test, whether the party be a mere visitor or not, those acts should be clearly defined, that the party may know the exact extent of the privilege granted. In our view, a mere visitor is one who comes only for pleasure or health, and who engages in no business while here, and remains only for a reasonable time. If the party engages in any business himself, or employ his slave in any business, except as a mere personal attendant upon himself, or family, then the character of visitor is lost, and his slave is entitled to freedom; and we cannot admit of any exception to this rule, upon the ground of necessity or misfortune. Were we to do so, it would introduce uncertainty and complexity, and lead our Courts into profitless investigations. We cannot ascertain, with any certainty, the pecuniary condition of the party. It is a matter difficult to show. He may have ample means, and yet have the appearance of present poverty. This is a question we will not inquire into; we prefer a plain, practical, and efficient rule •, one that all can understand and follow. It is true that unforeseen losses may sometimes occur to visitors ; but there are so many ways in which their effects may be obviated, without engaging in business, that we cannot relax the rule to meet the hardships of a particular case. Prudence and foresight will guard against these pecuniary losses, in most cases; and, if not in all, it must be regarded as the misfortune'of the visitor.
In the case of Julia v. McKinney, already referred to, it was decided by the Supreme Court of Missouri, that the hiring out of the slave for one or two days, in the State of Illinois, incurred a forfeiture, under the second section of the sixth article of the Constitution of that State. That section provided “ that no person bound to labor in any other State, shall be hired to labor in this State, except within the tract reserved for the salt works,” etc.
There is no such provision in our Constitution; but the question arises whether such a prohibition does not necessarily result from the general principle. This section in the Constitution of Illinois was necessary, to mark the exception to the general rule excluding slavery from the State. Had no exception been intended, then it is conceived that such a provision would have been unnecessary. But if a citizen of another State should be permitted to hire out his slave, or use his labor in the prosecution of any business, even for a temporary period, and with [169]*169the intent to return again to his own State, it would, in our opinion, be a violation of the Constitution of this State. It was the very purpose of the Constitution to prohibit such a state of things. It would be allowing a privilege to the citizens of other States, in the prosecution of their business in this State, which our Constitution denies to our own citizens. This is a privilege thafr-the Constitution of the United States does not secure to the citizens of other States. The provision that “ the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States,” secures to a citizen from home, in a sister State, the privileges enjoyed by the citizens of the State where he is a sojourner, and no more. If put upon an equality with our own citizens, in the prosecution of his business in this State, there can be no just ground for complaint. The sojourner has no right to enter with slave-labor into business competition with those who are not allowed the same privilege. Even in the1 case of a fugitive slave, the owner has only the right, under the Constitution of the United States, to remove him from the free State in which he may be found, and not the right to employ him in labor, even for a temporary period and purpose.
But to allow mere visitors to this State, for pleasure or health, to bring with them, as personal attendants, their own domestics, is not, in our view, any violation of the end contemplated by the Constitution of this State. Such a rule will not, in its general operation, interfere with the business or social condition of our own citizens.
It is insisted by the learned counsel for the petitioner that the provision of the eighteenth section of the first article of the Constitution of this State—that “neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State”—is merely directory to the Legislature; and until some act is passed by that body to give effect to this constitutional provision, it remains dormant and inoperative. In support of this view, we are referred to the case of Graves and others v. Slaughter, (14 Peters, 449,) and to the opinion of Mr. Justice Anderson, in the case of Perkins, (2 Cal. R., 424, 455.)
The case reported in Peters was a suit upon a promissory note given for slaves introduced into the State of Mississippi as merchandise. The Constitution of that State provided that “the introduction of slaves into this State as merchandise, or for sale, shall be prohibited from and after the first day of May, 1833,” with an exception as to such as may be introduced by actual settlers previous to the year 1845. Mr. Justice Thompson who delivered the opinion of the Court, said-: “ This obviously points to something more to be done, and looks to some future time, [170]*170not only for its fulfillment, but for the means by which it was to be accomplished.”
It will be seen that the provision regards the introduction of slaves for certain purposes, and that it does not, either expressly or by logical deduction, declare the consequences of its violation. Whether the slaves thus introduced were to be free, or whether the person who introduced them should be punished criminally, cannot be known from the provision itself. This provision, from its language and the purpose to be accomplished, could only depend upon future legislation to carry it into effect. It did not, in and of itself, and by its own innate force, operate upon the State of the slave, after being introduced into the State.
But the provision in our Constitution is entirely different, both in its language and in the logical deductions flowing from it. It is negative and restrictive in its terms and effect, and by its own force accomplishes the end aimed at. It operates directly upon the state of individuals within our own territorial limits, and provides that the state of slavery should not exist therein. And when the state of slavery is abolished, then each individual is placed upon an equality, and in the contemplation of the Constitution, equally free, with all the incidents necessarily attached to the state of freedom. This provision of the Constitution was operative from the time the other provisions became operative. It was not a provision addressed solely to the legislative conscience, and dependent upon future legislation to carry it into practical effect.
It is difficult to conceive how a negative and restrictive provision of the Constitution can be merely directory. When power is withheld, or a certain state prohibited, the provision must, from the very nature of the case, be conclusive. True, such a provision may be addressed solely to the Legislature, or to the Executive, and not to the Courts. But, when so addressed, there should be something, either in the language of the instrument or in the nature of the provision itself, to show that the judiciary have nothing to do with cases arising under it.
In the case of Rankin v. Lydia, (2 A. K. Marsh., 470,) we have an authority in point. The ordinance of Congress for the government of the territory northwest of the river Ohio, contained this provision:
“ There shall he neither slavery nor involuntary servitude in the said Territory, other than in punishment of crimes whereof the party shall have been duly convicted. Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be reclaimed and conveyed to the person claiming his or her labor, as aforesaid.”
It will be seen, upon comparison, how similar in substance is the language of this provision and that of the Constitution of [171]*171this State. The learned Judge who delivered the opinion of the Court in that case, said : “ The words of the ordinance are extremely clear and forcible—‘there shall be neither slavery nor involuntary servitude’—a strong mode of expressing that every inhabitant shall be free; thus using a figure of speech not uncommon, which, by expressing what shall not, declares emphatically what shall be. If a slave, then, could exist and reside in the Territory, and be there a slave, the ordinance could not be true; for slavery existed, the ordinance notwithstanding.” We must think that the case reported in 14 Peters, already referred to, has no application to this provision of the Constitution of California; and that the learned Justice of this Court was mistaken in its application. It will be seen from the separate opinion of the Chief Justice, that he did not take the same view of this authority as did Mr. Justice Anderson. At least, there is nothing in the opinion to show that the Chief Justice relied upon this authority to sustain his decision.
From the views we have expressed, it would seem clear that the petitioner cannot sustain either the character of traveler or visitor. But there are circumstances connected with this particular case that may exempt him from the operation of the rules we have laid down. This is the first case that has occurred under the existing law; and from the opinion of Mr. Justice Anderson, and the silence of the Chief Justice, the petitioner had some reason to believe that the constitutional provision would have no immediate operation. This is the first case; and under these circumstances we are not disposed to rigidly enforce the rule for the first time. But, in reference to all future cases, it is our purpose to enforce the rules laid down strictly, according to their true intent and spirit.'
It is therefore ordered, that Arehy be forthwith released from the custody of the Chief of Police, and given into the custody of the petitioner, Charles A. Stovall.