Page:An essay upon the constitutional rights as to slave property.djvu/7

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Slavery and the Constitution.


[The writer of the following article had in view several objects. He wished to be instrumental in disseminating information to the North as to the rights of the South, and in making known at the South the extent to which the judicial tribunals of the North have protected Southern rights; while, at the same time, it was a part of his design to present a legal view of the constitutional question, which has lately been discussed between the Executive of Virginia, and the Executive of New York. He thought it desirable, therefore, that the matter should be published to the North as well as to the South; and that the first publication, in either section of country, should be in a journal not of a political character. In accordance with this view, the manuscript, at the same time that it was furnished to the Messenger, was transmitted to the Editors of the American Jurist, a valuable legal periodical published at Boston. The manuscript as it came to us, was arranged for two numbers, and it was in the last of these, that the constitutional question above adverted to, was examined. A deep sense of the importance of that question—a knowledge of the peculiar interest with which it is regarded at the present moment, and a conviction that whatever will throw light upon it is now particularly acceptable—have induced us, with the author's assent, to unite the two numbers in one, and give the whole to our readers together.

The article is written in a calm and candid manner, and reflects much credit upon the industry and judgment of its author. He has rendered an important service to his own State, and presented, by an array of facts, a powerful appeal to the State with which she is in controversy. We think that our readers will be much interested and instructed in its perusal. We are not aware that we are taking an improper liberty, when we mention that its author is Conway Robinson, Esq., of this city. Let it be read with calmness, impartiality and reflection.]—Ed. Messenger.

rights of the slave-holding states, and of the owners of slave property, under the constitution of the united states.

The great importance of this subject, and the increased and increasing interest with which it is viewed in every part of our country, justify the belief that an examination of the provisions of the constitution on which the owners of slave property were induced to rely when the federal compact was formed, a sketch of the laws which Congress has passed to carry out those constitutional provisions, and a review of the judicial decisions which have been made under the constitution and laws, may prove acceptable to the readers of this journal, and not be without utility at the present time. As matter which is introductory and somewhat explanatory, we shall commence by giving an outline of the laws as to slavery, which at the time the federal constitution was adopted and subsequently thereto, have prevailed in the three most important northern states. We mean New York, Pennsylvania, and Massachusetts.

1. Laws as to Slavery in the Northern States.—The law, as to slavery in Massachusetts, is stated by Chief Justice Parsons in a case which came before the supreme court of that state.[1]

"Slavery," he says, "was introduced into this country soon after its first settlement, and was tolerated until the ratification of the present constitution. The slave was the property of his master, subject to his orders and to reasonable correction for misbehavior—was transferable like a chattel by gift or sale, and was assets in the hands of his executor or administrator. If the master was guilty of a cruel or unreasonable castigation of his slave, he was liable to be punished for the breach of the peace; and, I believe, the slave was allowed to demand sureties of the peace against a violent and barbarous master, which generally caused a sale to another master. And the issue of the female slave, according to the maxim of the civil law, was the property of her master. Under these regulations, the treatment of slaves was in general mild and humane, and they suffered hardships not greater than hired servants. Slaves were sometimes permitted to enjoy some privileges as a peculium, with the profits of which they were enabled to purchase their manumission, and liberty was frequently granted to a faithful slave, by the bounty of the master, sometimes in his life, but more commonly by his last will."

"In the first action, involving the right of the master, which came before the supreme judicial court after the establishment of the constitution, the judges declared that by virtue of the first article of the declaration of rights, slavery in this state was no more. And afterwards in an action by the inhabitants of Littleton, brought to recover the expenses of maintaining a negro against Tuttle, his former reputed master, tried in Middlesex October term, 1796, the Chief Justice, in charging the jury, stated as the unanimous opinion of the court, that a negro born in the state before the present constitution, was born free, although born of a female slave."

The opinion so given by the court in 1796, is stated by Chief Justice Parsons to have been opposed to the practice and usage at that day, but it has constituted a rule of decision ever since. The issue of slaves, although born before the adoption of the constitution, are held to have been born free.[2]

In New York, it was declared by one of the colonial statutes, that all due encouragement ought to be given to the direct importation of slaves. After the revolution, the government of that state determined upon a different policy.

The act of February 22d, 1788, declared, "that if any person shall sell as a slave within this state, any negro or other person, who has been imported or brought into this state after the 1st of June, 1785, such seller, his factor or agent, shall be guilty of a public offence and shall forfeit £100, and the person so imported and sold shall be free."

The act was hostile to the importation and to the exportation of slaves, as an article of trade, not to

  1. Winchester, &c. v. Hatfield, &.c.: 4 Mass. Rep. 123.
  2. Lanesborough v. Westfield: 16 Mass. Rep. 74.