means as may appear to either of the said corporations expedient and proper. And the same power is hereby vested in the Levy Court of Washington county, if any attempt shall be made, within its jurisdictional limits, to establish a depot or place of confinement for slaves brought into the said District as merchandise for sale contrary to this act."

$545. LEGISLATION OF THE STATE OF MASSACHUSETTS.'

1780. First Constitution of the State. The preamble declares the enjoyment of "natural rights" to be one of the ends of government. Declaration of Rights, Art. 1, declares that "all men are born free and equal, and have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property, and in fine of seeking and obtaining their safety and happiness."'

'See Vol. I. p. 265. 3 Hildreth's Hist. p. 391. "In 1777, a prize ship from Jamaica, with several slaves on board, was brought into Salem by a privateer. The slaves were advertised for sale, but the General Court interfered and they were set at liberty."

In Bradford's Hist. of Mass. p. 277, and appendix, it is said that in 1778, a Constitution was rejected by the people, and that "the greatest objection to it was that there was no bill of rights, or that the natural and inalienable rights of the people were not expressly reserved and secured.”

In Betty & al. v. Horton (1833), Court of Appeals of Virginia. 5 Leigh's Rep. 622. H. St. Geo. Tucker, President." The jury has found the Constitution of Massachusetts, containing a provision, like our own bill of rights, declaring “all men born free and equal." This it would seem is the only provision in the laws or Constitution of that State, upon this interesting subject. Looking to the actual state of that Commonwealth, and knowing, as we all know, that its slaves were few in number at the time of the adoption of its Constitution, we should be disposed to take this declaration less as an abstraction than we must regard that which is contained in our own bill of rights. We should readily extend it to mean at least as much as the common law, which does not recognize slavery as reconcilable with a residence upon British soil. I am inclined to think, however, it may go farther. The common law, I take it, is to be considered rather as declaring the mere status of the party, while in Great Britain, than in annulling the bond by which he is fettered, unless he asserts his right and establishes it by the adjudication of a competent tribunal. Then, indeed, it passes in rem adjudicatum; and upon well received principles of national [i. e. international] law this decision upon the right by a tribunal having complete jurisdiction over the subject, is conclusive everywhere. But, unless the right of the slave is so asserted and established, the common law has not the effect of knocking off his shackles; nor can it be invoked as his protector, upon his return to that country where he had formerly been a slave. Such, I incline to think, is the substance of the cases of Williams . Brown, 3 Bos, and Pull. 69, and of "the mongrel woman Grace," decided by Lord Stowell, and mentioned by counsel and by Judge Green in Hunter v. Fulcher, 1 Leigh, 179, 181. In Massachusetts, however, it seems that the Constitution of the State must have been interpreted to have a more extensive operation, as it

1786, June 22, c. 3. Act for the orderly solemnization of marriage. Sec. 7. "No person authorized to marry shall join in marriage any white person with any negro, Indian, or mulatto, under penalty of fifty pounds; and all such marriages shall be absolutely null and void."

1788, Mar. 25, c. 11. An act to prevent the slave-trade, and for granting relief to the families of such unhappy persons as may be kidnapped or decoyed away from this Commonwealth. Enacts that "No citizen of this Commonwealth, or other person residing within the same," shall import, transport, buy, or sell, any of the inhabitants of Africa as slaves." And

appears to have been decided, that the issue of a female slave, though born prior to the Constitution, was free; 2 Kent's Comm. 205. If this be so the Constitution has received an interpretation which goes to divest the title of the master to break the bonds of the slave and to annul the condition of servitude. It emancipates and sets free by its own force and efficacy, and does not wait the enforcement of its principles by judicial decision. It is more operative than the common law and more resembles the effect of our statute, declaring free all slaves imported contrary to law. But this depends upon the construction of the Constitution of Massachusetts by its courts, which we would of course respect and follow, if we were sufficiently advised of them. But, without their reports here, we should perhaps venture too far to rest our decision upon the Massachusetts Constitution. It is not deemed necessary," &c. In this case the question was of the freedom of slaves who had been brought back to Virginia after being taken to Massachusetts. They were held free.

Mention has already been made (Vol. I. 264, n.) of suits brought, before the Revolution, in Massachusetts, for freedom by negroes held in slavery, in some of which it was urged that no person born in the colony could be a slave. In the case of Inhabitants of Winchendon v. Inhabitants of Hatfield, 4 Mass. 128, decided in 1808, Parsons, Ch. J., said "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 (1780) was born free, although born of a female slave." But Judge Parsons added, "It is, however, very certain that the general practice and common usage had been opposed to this opinion." And his decision of the case, which regarded the settlement of a negro pauper, is based upon the fact that he was a slave in 1776; but it does not appear whether he was or was not a native of the colony.

It seems that within a year or two after the adoption of this Constitution, the general question of the legality of slavery in Massachusetts was brought before the courts, but no contemporaneous report of the decisions appears to be extant. 3 Hildr. 391. In Winchendon v. Hatfield, Parsons, Ch. J., said "Slavery 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 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

whereas divers peaceable inhabitants of this Commonwealth, or residents therein, have been privately carried off by force, or decoyed away under various pretences, by evil-minded persons, and with a probable intention of being sold as slaves without the same; and though sufficient provision is made for public justice in such case by common law, and an act establishing the right to and the form of the writ de homine replegiando, yet no provision is made for bringing actions for damages by the friends or families of any inhabitants who may

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. Several negroes born in this country of imported slaves demanded their freedom of their masters by suit at law, and obtained it by a judgment of court. The defence of the master was faintly made, for, such was the temper of the times, that a restless, discontented slave was worth little; and when his freedom was obtained in a course of legal proceedings, the master was not holden for his future support if he became poor. But 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."

In Inhabitants of Andover v. Inhabitants of Canton (1816), 13 Mass. 551, Parker, Ch. J., said "Indeed, we find the court, early after the adoption of our Constitution, deciding, not only that slavery was virtually abolished by that Constitution, but that the issue of two slaves born in wedlock in the year 1773 was born free,-probably upon the principle that, although slaves acquired in a foreign country might remain bound during their lives, yet that in a free country they could not transmit their slavery to their posterity. This was settled in the case of Littleton v. Tuttle. The practice, however, was, as suggested by Chief Justice Parsons, in his comments upon that case, to consider such issue as slaves, and the property of the master of the parents, liable to be sold and transferred like other chattels, and as assets in the hands of executors and administrators."

In Lanesborough v. Westfield (1819), 16 Mass. 75, Judge Parker seems to justify the decisions on the following-"By the colonial law of 1646, no bond-slavery could exist, except in the case of lawful captives taken in just war, or such as willingly sold themselves or were sold to the inhabitants (Ancient Charters, &c. See in Vol. I., p. 260); of course the children of those who in fact were, or who were reputed to be, slaves, not coming within the description, could not be held as slaves,"

Mr. Washburn, in the paper mentioned Vol. 1, p. 264, has described three suits occurring in 1781, involving the status of a negro named Quork Walker, “in which, by a verdict of a jury, with the approbation of the highest court, it was decided authoritatively that slavery no longer existed in Massachusetts." Mr. Washburn has transcribed the substance of the brief used by the counsel for the negro before the jury in the higher court. He supposes that the illegality of slavery was not attributed mainly to the operation of the Constitution of 1780. There is, however, in the brief, as described by him, little or nothing else to rest on that can be called law, if the definitions adopted in the commencement of this treatise are correct.

Law of 1787, Feb. 19, enacts that every person imprisoned is entitled to the writ.

be carried off,"-provides that any friend may bring an action in the name of the inhabitant carried off, under bonds to apply the money recovered to the benefit of the family of the person, &c.

1788, March 26, c. 21. Act for suppressing rogues, vagabonds, &c., the last section of which enacts: "No person being an African or negro, other than a subject of the emperor of Morocco, or a citizen of some one of the United States, to be evidenced by a certificate from the secretary of the State of which he shall be a citizen, shall tarry within this Commonwealth for a longer time than two months, and upon, complaint made to any justice of the peace within this Commonwealth that any such person has been within the same more than two months, the said justice shall order the said person to depart out of this Commonwealth, and in case that the said African or negro shall not depart as aforesaid, any justice of the peace within this Commonwealth, upon complaint and proof made that such person has continued within this Commonwealth ten days after notice given him or her to depart as aforesaid, shall commit the said person to any house of correction within the county, there to be kept to hard labor agreeably to the rules and orders of the said house, until the session of the Peace next to be holden within and for the said county; and the master of the said house of correction is hereby required and directed to transmit an attested copy of the warrant of commitment to the said court on the first day of their said session, and if upon trial at the said court it shall be made to appear that the said person has thus continued within this Commonwealth contrary to the tenor of this act, he or she shall be whipped not exceeding ten stripes, and ordered to depart out of this Commonwealth within ten days; and if he or she shall not so depart, the same process shall be had, and punishment inflicted, and so toties quoties.

1834, c. 177. An act for the orderly solemnization of mar

1 Constitution of the U. S. adopted by Mass. Sept. 13, 1788.

1834, c. 155, vol. 13, Gen. L. An act in addition to the acts relating to fugitives from justice. Sec. 2. Prescribes the duty of the Governor and Attorney General to consult, and empowers the Governor to issue warrant for delivery and removal. See R. S. c. 142, sec. 7-11. Held constitutional in Commonw. v. Tracy, 5 Metcalf, 536.

riages, repealing former acts, but excepting sec. 7 of the act of 1786. Same law, R. S. c. 75, s. 5; c. 76, s. 1.

1843,' ch. 5. An act relating to marriages between individuals of certain races. Repeals provisions of R. S. against in termarriage of whites, negroes, &c.

-, c. 69. An act further to protect personal liberty. Sec. 1. No judge or justice to take cognizance of any case under act of Congress, Feb. 12, 1793. 2. No sheriff or other officer shall arrest, or detain, or aid in arresting or detaining in any public building belonging to the commonwealth, any person claimed as a fugitive slave. 3. Any justice, &c., violating this act, to forfeit a sum, &c., or be imprisoned, &c. General Stats. c. 144, $$ 58-67.

1855, c. 489. An act to protect the rights and liberties of the people of the Commonwealth of Massachusetts. Sec. 1. All the provisions of the Act further to protect, &c. (of 1843), shall apply to the act of Congress of Sept. 18, 1850, relating to fugitives from labor. 2. The 111th ch. of R. S. declared to mean that every person imprisoned, &c., is entitled to the writ of habeas corpus, except in the cases mentioned in the second section of that chapter. 3. What courts may issue the writ. 4. On demand of either party, a trial by jury shall be ordered, if from return it shall appear that the person detained is claimed as a fugitive from service in another State. 5. Jury how summoned. 6. Claimants to make statement in writing. Burden of proof to be on claimant. 7. Declares that any who shall remove any person being in the peace of the Commonwealth, "who is not held to service or labor' by the 'party' making claim,' or who has not 'escaped' from the 'party' making 'claim,' or whose 'service or labor' is not 'due' to the 'party' making 'claim,' within the meaning of those words in the Con

1 Resolve of 1839, April 8. Preamble. Whereas, under the laws of several States of the Union, citizens of this Commonwealth visiting those States for purposes of business, or driven thither by misfortune, often have been and continue to be, though guiltless of crime, cast into prison, subjected to onerous fines, and in many instances sold into slavery; therefore," &c.

The common-law writ de homine replegiando had been abolished. See R. S. of 1836, c. 111, s. 38. It was restored by law of 1837, c. 221,-An act to restore the trial by jury on questions of personal freedom. No exception is made as to persons claimed as fugitives from labor or from justice. General Laws, c. 144, $$ 42-57.