Page:An essay upon the constitutional rights as to slave property.djvu/8

4 the existence of slavery itself; for it took care to re-enact and establish the maxim of the civil law, that the children of every female slave should follow the state and condition of the mother.

It was not considered to prevent a sheriff from taking or selling a slave under an execution against the owner; and the slave was subject to the control and disposition of the executor or administrator of a deceased owner, in the same manner as other personal property. The prohibition was against a voluntary sale by the master of a slave, imported or brought into the state.

The statute imposed a penalty for harboring slaves or servants; and it was held moreover that this was cumulative, and did not destroy the common law remedy which a master had by an action, to recover damages for seducing and harboring his servant.

The master might confine his slave in jail, and this it appears was done in a case decided as late as 1823.

By the act for the gradual abolition of slavery, all children born of slaves, subsequent to the 4th of July, 1799, were declared to be free, but to continue servants to the owners of their mothers—males till the age of twenty-eight, and females till the age of twenty-five. The act of 1817 made it the duty of the masters of such servants, to give them certain education before arriving at the age of eighteeen, and, in default of so doing, declared the servants free at the age of eighteen; and, in order that it might be known when the age was attained which discharged them from further servitude, the person entitled to such service was required within one year after the passage of the act, or after the birth of the child of a slave, to make an affidavit stating the age of such servant; and in default of making and filing such affidavit, within the time specified, the act declared the person so held to service free at eighteen.

Even after this act, all then alive, who were born in the state prior to the 4th of July, 1799, of females who were slaves at the time of the birth, continued slaves; except such as had been emancipated by their owners.

At last, by an act of the 31st of March, 1817, provision was made for the annihilation of slavery in the state of New York, in about ten years thereafter, by a section which declared that every negro, mulatto or mustee, within the state, born before the 4th of July, 1799, should, from and after the 4th day of July, 1827, be free.

The act of the legislature of Pennsylvania, for the gradual abolition of slavery, passed on the 1st of March, 1780. By this act every person, who at the time of passing it was a slave, was to remain a slave, unless his owner omitted to register him on or before the 1st day of November ensuing. Children born after the passing of the act, were born free, subject however to a temporary servitude till the age of twenty-eight: and the issue of such children could not be held to any servitude.

Very soon after this act was passed, a number of persons formed a society in Philadelphia, for the purpose of relieving those who were held in illegal slavery. A boy, born in Maryland of an unmarried mulatto woman, who was a slave, attended his master to Philadelphia in the autumn of 1784, and his complexion being light, the attention of this society was excited, and a writ of habeas corpus was taken out at their instance for his relief. The case was afterwards thrown into the form of an action de homine replegiando. At the trial, the plaintiff himself was shown to the jury, that they might, from his appearance, draw a conclusion that he was, at least on one side, the issue of white parents. On the part of the master, it was proved that by the laws of Maryland, the boy was a slave in that state; and it was contended that the lex loci must determine the right. The other side allowed the force of the lex loci in regulating contracts, but insisted that it could never be extended to injure a third person who was not a party to the contract; and on that side the following propositions were advanced: 1st. That however the case might be according to the civil law, by the common law, the issue followed the condition of the father, 2dly. That a bastard being nullius filius was free; and 3dly. That things, not persons, are the objects of property. McKean, Chief Justice, delivered his sentiments in an elaborate charge to the jury—in the course of which, he said: "Slavery is of very ancient origin. By the sacred books of Leviticus and Deuteronomy, it appears to have existed in the first ages of the world; and we know it was established among the Greeks, the Romans, and the Germans. In England, there was formerly a species of slavery, distinct from that which was termed villenage. Swinb. p. 84, 6 edi. is the only authority I remember on this point, though I have before had occasion to look into it with attention. But from this distinction has arisen the rule that the issue follows the condition of the father—and its consequence that the bastard is always free; because in contemplation of law, his father is altogether unknown, and that therefore his slavery shall not be presumed, which must be confined implicitly to the case of villeins. It would, perhaps, be difficult to account for this singular deviation in the law of England, from the law of every other country upon the same subject. But it is enough for the present occasion to know, that as villenage never existed in America,