Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/51

 Grace and other similar cases were urged upon the court, with his usual force, by Mr. Justice Curtis, then of counsel for the master, it does not appear that this question was discussed at all by the counsel for the slave; and the intimation of the Chief Justice in favor of the opinion of Lord Stowell is immediately preceded by the distinct statement that it "is a question which was incidently raised in the argument, but is one on which we are not called on to give an opinion in this case, and we give none." 18 Pick. 218.

Such being that case, we venture to suggest that the theory that a slave brought to Massachusetts does not become absolutely free, is not only inconsistent with general principles, but with the Declaration of Rights, quoted in the earlier part of this article. It is not likely that the question of the condition of a slave, after returning to a slave State, can ever directly arise in Massachusetts; but the spirit of her laws in this matter is clearly shown by many adjudged cases. A few years before the case of Aves, Chief Justice Shaw remanded a negro boy, brought before him by writ of habeas corpus, to the custody of his mistress, only upon the ground that she, "having, by her return to the writ, disclaimed to hold him as a slave, had made a record of his freedom, and could not make him a slave again in the Island of Cuba;" and further said that "the boy, by the law of Massachusetts, was in fact free," and if the mistress had claimed him as a slave, he should have ordered him to be discharged from her custody. Francisco's case, 9 Amer. Jurist, 490. And in a later case the supreme court refused to allow a negro boy, only seven or eight years old, to be carried back into slavery, even with his own consent, but ordered him to be delivered to a guardian appointed by the judge of probate. Commonwealth v. Taylor, 3 Met. 72. These cases do not seem to countenance the idea that the law of Massachusetts recognizes the condition of slavery as merely suspended, but still existing, while the master and slave are within her limits. And a negro's voluntary submission of himself and all his future offspring to hereditary slavery would seem to be hardly consistent with the principle of the law of Massachusetts, under which no one was ever born a slave in this Commonwealth, even before the adoption of the present Constitution, as is perfectly well established by a series of reported decisions, beginning with Littleton v. Tuttle, 4 Mass. 128, note, (1796), and ending with Edgartown v. Tisbury, 10 Cush. 408, (1852,) where all the other authorities 5