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seize upon and carry away to any place, or attempt to seize and carry away in a riotous, violent, tumultuous and unreasonable manner, and so as to disturb or endanger the public peace, any negro or mulatto within this Commonwealth, either with or without the intention of taking such negro or mulatto before any district or circuit judge, the person so offending against the peace of this Commonwealth shall be deemed guilty of a misdemeanor," punishable by fine and imprisonment. (Sec. 3, 4, appear in the revised code of 1860.) 5. "Nothing in this act shall be construed to take away what is hereby declared to be invested in the judges of this Commonwealth, the right, power, and authority at all times, on application made, to issue the writ of habeas corpus, and to inquire into the causes and legality of the arrest and imprisonment of any human being within this Commonwealth." 6. Forbidding the use of the prisons of the State for detention of fugitive slaves.' (Rep. in 1852, Sess. L., p. 295.) 7. Repeals so much of the act of 1780 as authorizes the masters or owners of slaves to bring and retain such slaves within this Commonwealth, for the period of six months, in involuntary servitude, or for any period of time whatsoever,' and so much of said
1 Commonw. v. Taylor (1849-50), 3 Monthly Law Rep., 576, was an indictment under the 4th and 6th sections. The alleged slaves had been imprisoned on the charge of horse-stealing committed in Virginia, from which custody they were discharged by proper order. "It was in evidence that the defendants, on learning the decision of the court discharging the negroes, stationed themselves within the entrance to the prison for the purpose of capturing them as fugitive slaves, and, on their being turned into the passage by the jailer, at once seized upon their persons, detained them there for some time, during which a severe struggle ensued between Mr. Taylor and those assisting him and the alleged fugitives, aided by some negroes of Harrisburg. Finally the slaves were ironed, and about that time the whole party was directed to be locked up in prison on account of a supposed breach of the peace." In reference to the violation of the fourth sec. the Court charged that the right of the owner to seize his slave was given by the act of Congress of 1793; that as the State law could not take from him this right, there was no breach of the peace, or riot, on his part, in the transaction. The Court does not attempt to distinguish whether the seizure was made for the purpose of bringing before a court for the purpose of making a claim, or to remove the alleged slaves out of the State. In Commonw. v. Alberti (1847), 2 Parson's Select Cases, 495, an indictment for removing the child born of a fugitiveslave woman was sustained under this statute. From these cases it appears that it is at least necessary for the defendant to prove the slavery of the person removed.
* Pierce's case, in Common Pleas, Phila., Oct., 1848, 1 Western Legal Obs., 14, that since this act a slave brought into this State by his master, voluntarily, be
act as prevents a slave from giving testimony against any person whatsoever be, and the same is hereby repealed. (Brightly's Dig. of 1858, Negroes. Sec. 13-20.)
554. LEGISLATION OF THE STATE OF DELAWARE.
1776, Sept. 11. A Declaration of the Fundamental Rules of the Delaware State, formerly stiled The Government of the counties of Newcastle, Kent, and Sussex, upon Delaware. Sec. 1. "That all government of right originates from the people, is founded on compact only, and instituted solely for the good of the whole." 10. "That every member of society hath a right to be protected in the enjoyment of life, liberty, and property," &c. 12. "That every freeman, for every injury done him in his goods, lands, or person, by any other person, ought to have remedy," &c., "according to the law of the land." There is no declaration of the equality of all mankind, or of rights as being natural and inalienable. 1 Del. Laws, Ap. p. 79. -, Sept. 20. Constitution agreed on. Art. 24 continues in force all acts of Assembly not contrary to the resolutions of Congress, or of the late House of Assembly of the State. Art. 25 has a recognition of the common and statute law of England, if not repugnant to the Constitution and declaration of rights. Art. 4 limits the elective franchise to whites. Art. 26. "No person hereafter imported into this State from Africa ought to be held in slavery under any pretence whatever, and no negro, Indian, or mulatto slave ought to be brought into this State for sale, from any part of the world." Ibid.
1787.-An act to prevent the exportation of slaves and for other purposes.' Del. Laws, p. 884. Recites that "sundry negroes and mulattoes, as well freemen as slaves, have been exported and sold into other States, contrary to the principles of
comes ipso facto free. And see Kauffman v. Oliver (1849), 10 Barr, 516, as to the existing law and policy of the State.
There appears to be no statute in Pennsylvania authorizing the governor to surrender fugitives from justice, unless it be in the Code of 1860, which I have
1 State v. Turner, 5 Harrington, 501, exporting is carrying out with intention to
humanity and justice, and derogatory to the honor of this State." Sec. 1. Declares a fine for exporting a slave without permit. 8. Penalty for exporting a negro who is or may be entitled to freedom. 3-6. Ratifying former manumissions where no security was given and dispensing with security in future cases, if slave be neither old or infirm. 7. Persons bringing a slave into this State shall forfeit 207., and the slave shall be free. (A law of 1822 provides for farms which extend over the State line. Rev. of 1829, p. 502.) 8. Manumitted slaves shall not vote, nor hold office, nor give evidence against whites,' nor "enjoy any other rights of a freeman other than hold property and to obtain redress in law and equity for any injury to his or her person or property." 9. Free negro, for horse-stealing, shall be transported to the West Indies or elsewhere and sold for a term of years. 10. This act not to extend to immigrants or to travelers.'
1789.-An act supplementary to the last. Ib. p. 941. Sec. 1. Allows introduction of slaves devised or inherited. 2. Slaves of citizens of other States, in this State, may be attached for owner's debts. . Another supplement. Ib. p. 941. Preamble recites the injustice of the African slave trade. Sec. 1. Declares forfeiture of vessels equipped for this trade. 2. Ad
1A free negro cannot be witness between whites. Collins v. Hull (in 1798), 6 Hall's Am. Law Journal, 461; Tindal v. Hudson (1838), 2 Harrington, 441, that free negroes cannot hold slaves in Delaware; that the principle of conquest is the basis of slavery of negroes to whites; that a negro cannot hold a negro on this principle; it would be a species of slavery hitherto unknown;" that the free negro is not such a freeman as to extend the protection requisite from master to slave, &c. A father cannot hold his child as a slave. "We ought not to recognize the right of a father to hold his own children in slavery. Humanity forbids it. The natural rights and obligations of a father are paramount to the acquired rights of the master."
The words are "Provided that nothing in this act shall be construed to extend to or affect any persons who may move into this State from any other State, with his or her family, and become residents thereof, or who may be traveling through the same with his or her servants or slaves, or any inhabitants of this State moving with his or her family into any other State." In Newton v. Turpin (1837), 8 Gill and Johnson, 433, the word State in this act is held to include the District of Columbia. Dorsey, J.: "To give the word State in this act of assembly the literal technical meaning ascribed to it would be to violate its spirit, the sound and obvious meaning of the law. We do not hold ourselves bound, when interpreting its import in reference to rights of property, to give it the same literal restricted interpretation which it has on some occasions received when used in reference to a grant of special limited jurisdiction.”
ditional penalty for exporting a slave without permit. 3-5. Slaves in capital cases shall be tried by jury,-repealing older laws. An act of 1829, provides for licenses for bringing slaves to and from Maryland. Rev. of 1829, p. 501. A new law in 1833. Rev. Code, ch. 80, §§ 1-4.
1790.-An act on marriages. Ib. p. 972, contains provisions as to servants' marriages.
1792.-A new Constitution. Art. I. a Bill of Rights-does not contain any universal attribution of rights, or declare the natural equality of all men. Art. IV. The elective franchise is limited to white free men.
1793.-An act to punish the practice of kidnapping free negroes and free mulattoes, and for other purposes. Ib. p. 1093. Sec. 1. Declares punishment by whipping, standing in the pillory, with the ears nailed and then cut off. 2. Bail required under these acts. 3, 4. Of granting permits to export slaves; and that every slave otherwise exported shall thereby become free.'
1795.-An act repealing that part of "an act against adultery and fornication" (1721) which makes children of a white woman, by a negro or mulatto father, liable to servitude for thirty-one years, reciting-" whereas it is unjust and inhuman to punish the child for the offence of the parent." Del. Laws, P. 1201.
1797.—An act concerning negro and mulatto slaves. Ib. p. 1321. Sec. 1. Slaves shall not be set free by verbal contracts. 2, 3. How manumissions shall be executed and recorded. 4. Actions on agreement to manumit must be founded on a writing. 5. But slaves shall be made free by attempt to
'Held in Allen v. negro Sarah (1838), 2 Harrington, 435, not to be contrary to the Constitution of the United States, 4th art. sec. 2. Per curiam, 16, 439:-" Similar laws have been passed in several of our sister States; which laws have been subjected to the examination and received, incidentally, the sanction of the Supreme Court of the United States. The property in slaves is not an absolute but a qualified property. It is the right to the enjoyment of the services of the slave during his life. It is not such a right of property as gives the power of unlimited control over the slave. The slave has rights. He is under the protection of the law, and it was for his protection, as well as for subserving the principles of humanity that the law of 1793 was passed. The general policy of that law and its operation and influence over this unfortunate race of human beings have been found to be beneficial."
export, as provided by the above-mentioned acts; and slaves may be still emancipated by last will. 6. Security to be given where already required by law. 7. Appeals allowed, to the highest court, in suits for freedom. 8. Slave, for attempting rape on a white woman, on trial before two justices and six freeholders, may be punished by whipping, nailing to the pillory, and loss of ears. 9. A slave, for beating another slave or a free negro, shall be whipped after trial before two justices. (See new criminal code of 1827.)
1798.-A law about sale of liquors at elections. 3 Del. L. p. 7, contains provisions regulating slaves and free negroes, at the places of holding elections. Incorporated in an election law of 1825. Rev. Code of 1852, ch. 16, § 18-21.
1799.-An act to allow free black persons and free mulattoes in certain cases to give testimony in courts of justice. 3. Del. L., 80. In all criminal prosecutions, when no white was present, &c., the testimony of blacks may be received; proviso, but not in charges of bastardy against a white man. Rev. C., c. 107, § 4.
1807.-An act for the better regulation of free negroes and free mulattoes. 4 Del. L., p. 108. Sec. 1. Non-resident free negroes prohibited coming to reside in this State; such are to be warned to depart, on neglect thereof, to be arrested and, on conviction, fined. Proviso, that any bringing certain testimonials of their being free and of good character, may remain. 2. How to be warned. 3. Who non-resident negroes. This act not applicable to seafaring persons. (Rev. C., ch. 52.) 4-6. Free negroes convicted of larceny may be sold to make restitution; purchasers having liberty again to sell, making assignment before a justice. 7. Negroes and whites prohibited to intermarry, and such unions declared void. 8. Penalty on minister, &c., for marrying. (Rev. C., ch. 74.) 9. Penalty by fine on white woman having bastard by a negro. 10. Penalty by fine on white men guilty of fornication with negroes; proviso, that no negro's evidence be received on such cases.
1808. An act for the better securing of personal liberty, 4 Del. L. 215, relates to insolvent debtors. Sec. 7. Declares