Commonwealth v. Aves: "His condition is not changed"

The case of Commonwealth v. Aves, 35 Mass. 193 (1836) is a relatively well-known early decision in which a respected northern state court judge declared free a slave brought into a non-slave state only "for [a] temporary purpose . . . but not acquiring a domicil here."

What I have not seen emphasized about Aves is that, in one significant respect, the reasoning was narrower than that employed by some contemporaneous slave state courts.

In Aves, Chief Justice Lemuel Shaw of the Supreme Judicial Court of Massachusetts went out of his way to explain that the slave's presence in the state did not change his status per se. Instead, the slave was entitled to his freedom because Massachusetts law would not enforce his restraint:

[I]f such persons have been slaves, they become free, not so much because any alteration is made in their status, or condition, as because there is no law which will warrant, but there are laws, if they choose to avail themselves of them, which prohibit, their forcible detention or forcible removal.

The difference between a change in status and the absence of law to enforce the restraint might at first seem metaphysical, but in fact it can be crucial. What happens if the slave returns with his master to a slave state and then sues there for his freedom? If his status has changed, in theory the slave state court should declare him free. But if he retains the status of a slave, and the sole question was a matter of enforcement, then he remains a slave.

Although Chief Justice Shaw admitted the issue was not before him, he drew precisely this conclusion:

Whether, if a slave, voluntarily brought here and with his own consent returning with his master, would resume his condition as a slave, is a question which was incidentally raised in the argument, but is one on which we are not called on [note the use of the double preposition!] to give an opinion in this case, and we give none. From the principle above stated, on which a slave brought here becomes free, to wit, that he becomes entitled to the protection of our laws, and there is no law to warrant his forcible arrest and removal, it would seem to follow as a necessary conclusion, that if the slave, waives the protection of those laws, and returns to the state where he is held as a slave, his condition is not changed.

I have in other posts reviewed a number of slave state decisions concerning slaves who moved to free territory or states and later returned to slave states, where they sued for the freedom. (Most of the decisions I have discussed involve the Supreme Court of Missouri; click the appropriate tag.) It is true that the slave state courts required residence rather than transit (although some defined transit extremely narrowly). But in effect, they assumed that, once the slave became free, he remained free even when he returned to a slave state. In other words, his status had changed.