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actual sale, but upon the manifestly proved intention. 7 In Massa
chusetts, in 1820, a man who was found in a local court guilty of
engaging in this trade appealed to the United States Circuit, where
the judgment was reaffirmed; 8 and in 1823 it was stated as the
opinion of Judge Story, when United States Circuit Justice, that a
vessel caught in the slave trade, though before she had taken slaves
on board, was liable to forfeiture. 9 A decision in New York in
1820 reads: 10 "It is an indictable offence, under the Act of

1 Niles Weekly Register, 17. 287. 2 Ibid. 14. 256.

8 3 Martin (o. s.) 285. Meunier vs. Duperron.

4 i Leigh, 588. Davenport vs. The Commonwealth.

5 Digest of the Laws of Missouri Territory, by Geyer, p. 378.

6 Niles Weekly Register, 14. 223.

7 Federal Cases, 27. 1158; 4 Day s Reports, 123; Brun. Col. Cas., 82; U. S. vs.
Smith.

8 Federal Cases, 26. 826; 2 Mason, 129; U. S. vs. La Coste. La Coste was par
doned in 1822 by President Monroe (Niles Weekly Register, 22. 114).

9 Federal Cases, i. 362 (case 165); 3 Mason, 175; The Alexander.

10 Federal Cases, 26. 1145; i Brunner Col. Cas., 426. U. S. vs. Malebran.



Court Decisions: Questions of Freedom 225

Congress, to fit, equip, load or otherwise prepare a vessel in the
United States for the purpose of procuring or transporting slaves
from a foreign place to any other place." Another the same year
says : l "It is sufficient on an indictment for engaging in the
slave trade, to prove that the accused were engaged in procuring
slaves, and sending them on by another vessel; it is not neces
sary that the vessel to which they belong should actually have had
slaves on board."

In the only case in the South, in South Carolina, February,
1808, the decision was that the forfeiture under the act of Con
gress might be remitted by the United States Circuit Court in
cases of extreme hardship. 2 The vessel in question sailed in 1806.
Sickness, storms, and hardships of all kinds seemed to follow the
craft; she set sail for home in ample time to arrive in the autumn
of 1807, but after a voyage unprecedented in length she arrived in
January, 1808, and was confiscated by the United States officers.

The Federal slave trade act was backed up in most of the states
by laws prohibiting transportation entirely, or imposing strict con
ditions upon it. The cases that arose were in the lower courts with
few appeals, and judgment usually went against the slaveholder.
In 1810 a claim for freedom was allowed in consequence of impor
tation into Rhode Island from Cuba; 3 in 1812 was a similar case
in regard to importation from Jamaica. 4 Two cases (1809, 5 1816 6 )
have been found in New York under the law of 1788 regulating
importation and sale, also one in New Jersey in i82o, 7 in all of
which the negro recovered his freedom.

Similar cases under similar laws occurred in Maryland : Fulton
vs. Lewis, 1815 ; 8 and Henderson vs. Negro Tom, i8i7. 9 In the
former of these a man fleeing from San Domingo at the time of
the revolution there brought with him two slaves, one of whom
he sold before returning home, after the pacification of the island.
The negro was held entitled to freedom. Two cases in 1814 are

1 Federal Cases, 24. 815; i Brunner Col. Cos., 422. U. S. vs. Andrews.

2 Federal Cases, 26. 791; Bee., 252. U. S. vs. The Kitty.

3 Constitution of the Pennsylvania Abolition Society, published as a pamphlet in
1820, p. 23.

4 Ibid. p. 24; Commonwealth vs. Austin Montgomery.

5 Anthon s Nisi Prius Reports, 128. Dubois vs. Allen.

6 Niles Weekly Register, 18. 344.

7 Wheeler: "Law of Slavery," p. 381. Helm vs. Miller.

8 Ibid. p. 382; 3 Har. & John., 564.

9 Wheeler: "Law of Slavery," p. 381; 4 Har. & John., p. 282.



226 Court Decisions: Questions of Freedom

similar in import. A slave was taken from Maryland to the Dis
trict of Columbia, and while there a child was born. When taken
back to Maryland the child was declared free. 1 Another slave
and her child taken to the District of Columbia and back to
Maryland in the same way were both held entitled to freedom. 2

A case occurred in Maryland in 1813, where a slave petitioned
for freedom in a court in Baltimore County on the ground of a
violation of the Virginia import law, which gave freedom to the
imported slave after a residence of one year, unless a certain oath
had been taken within sixty days after the importation. He was
adjudged free both by the court of oyer and ter miner, and in the
court of appeals. It is especially noteworthy that the year of resi
dence was in this case made up of short, non-consecutive periods. 3
In 1821, in the District of Columbia, in a similar case, where there
had been some years residence in Virginia, the counsel for the
claimant wished the court to instruct the jury that the presump
tion was that the importer took the oath, but the plea was not al
lowed. 4 In 1820 it had been even held that the failure of the slave
to appeal for freedom during a period of nine years after he had
arrived at the age of twenty-one did *not of itself create a pre
sumption that the oath had been taken. 5 Under the Maryland
law prohibiting the importation of slaves from other states, a slave
taken from Virginia and kept in Maryland for a period of years,
on his return to Virginia in 1829, was adjudged free by the Vir
ginia courts, after two appeals. 6

The law of the District of Columbia forbade importation for
sale, although residents might bring their slaves with them, and
it led to many cases in the United States Circuit Court of the Dis
trict. Two cases, in 1826 7 and i83o, 8 declared that a sale within
three years rendered such importation illegal. Another, in i823, 9
declared such importation illegal, even though the intention was to

1 3 Har. & John., 491. Sprigg vs. Negro Mary.

2 Ibid. p. 493. Sprigg vs. Negro Presley.

3 The Genius of Universal Emancipation, 4. 28; Wheeler: "Law of Slavery,"
P- 338; 5- Har. & John., 107. Stewart vs. Oakes.

4 Federal Cases, 10. 46; 2 Cranch, C. C., 236. Garretson vs. Lingan. (A citation
from 5 Munf., 542.)

5 Federal Cases, 20. 455; 2 Cranch, C. C., 220. Reeler vs. Robinson.

6 Wheeler: "Law of Slavery," p. 339; i Leigh, 172. Hunter vs. Fulcher.

7 Federal Cases, 29. 1286; 3 Cranch, C. C., 55. Williams vs. Van Zandt.

8 Federal Cases, n. 6n; 4 Cranch, C. C., i. Harris vs. Alexander.

8 Federal Cases, 13. noi; 2 Cranch, C. C., 373. Jordan vs. Sawyer.



Court Decisions: Questions of Freedom 227

carry the slave out of the District. The sale within three years was
legal proof that the slave was brought for sale. Another decision
in 1828 is worth quoting. 1 "If a citizen of Virginia, the owner of
a slave there, who had resided in Virginia three whole years, remove
into the county of Washington with the bonafide intention to settle
therein, and bring the slave with him, at the time of his removal,
or within one year thereafter, to reside in the said county, such
importation is not contrary to law ; but a sale of such slave, in the
said county, within three years after such importation, may entitle
him to freedom; although such sale be made to a person residing
out of the District of Columbia, and in a state wherein slaves are
lawfully held, and intending to take the said slave out of the Dis
trict of Columbia to the place of the purchaser s residence, and
with that intent removing him from Washington to Alexandria,
where he ran away and came to Washington and the sale was by
mutual consent rescinded; and although the sale (commenced in
Washington) was not consummated till the removal of the slave to
Alexandria; and although the agreement for the sale was made in
Alexandria, out of the county of Washington, and was not to be
complete till the slave should be delivered by the seller to the
purchaser at Alexandria, where the delivery in fact took place."
A case somewhat similar had been decided in 1821, where passage
through Alexandria was brought forward ineffectually as a plea
against giving the slave his freedom. 2

Birth in a free state was in every case considered as conclusive
proof of freedom. 3 A decision in Pennsylvania in 1816 assumed
the same doctrine, although the mother was a fugitive slave who
was afterwards reclaimed; 4 and this decision was also quoted in
1816, and again in 1817. 5

Removal to a free state was in these early years regarded as giv
ing freedom to the slave so removed, provided the removal was a

1 Federal Cases, 2. 1037; 3 Cranch, C. C., 296. Battle vs. Miller.

2 Federal Cases, 7. 1185; 2 Cranch, C. C., 261. Dunbar-y*. Ball.

3 Wheeler: "Law of Slavery," p. 346; 6 Rand., 566 (Spotts vs. Gillespie, Va., 1828);
Wheeler, 356; 8 Mart. (n. s.), 699 (John Merry vs. Chexnaider, La., 1830); i Mo. Sup.
Court, 725 (John Merry vs. Tiffin & Menard, 1827); African Observer, loth Month,
1827, p. 204, letter dated Aug. 23, 1827 (perhaps a case of residence).

4 2 Ser. & Rawle, 305 (Com. vs. Holloway); Stroud : "Sketch of Laws relating to
Slavery," edition of 1827, p. 13 q, edition of 1856, p. 215; Wheeler: "Law of Slavery,"
p. 383; Constitution of Penn. Abolition Society, 1820, p. 23; Niles Weekly Register, u.
28; Kurd: " Law of Freedom and Bondage," 2. 412-414.

5 Niles Weekly Register : n. 46; Needles: "History of the Penn. Abolition Society,"
p. 64.



228 Court Decisions: Questions of Freedom

change of residence, permanent or temporary, and not a mere
transit from one state to another. In 1818 residence in Penn
sylvania was held to prevent the removal of a servant out of the
state on an indenture, though the indenture had been made in
another state, before the residence in Pennsylvania, and though
the indenture contained a covenant to serve the master in Penn
sylvania or anywhere. The covenant was held to have been made
void by the residence in a free state. * A slave taken from the Dis
trict of Columbia to reside in Pennsylvania was set free in i822, 2
and a similar case came before one of the United States Circuit
Courts of Pennsylvania in i823. 3

It is significant that most of these decisions were made by
Southern state courts, or by the Federal courts in the Southern
states, for the sentiment before 1831 is directly at variance with
the Dred Scott decision in 1857, though the conditions were iden
tical. Among many such cases in Louisiana 4 was a typical case
in 1824, in which the slave had been removed from Kentucky to
. Ohio, where she claimed her freedom, then forcibly brought back
I to Kentucky, and again to Ohio, before her final removal to Louisi-
I ana. The Supreme Court held that "the relation of owner and
slave, is, in the states of this Union, in which it has a legal exist
ence, a creature of the municipal law." Removal into a free
state by the owner subjected his whole family, white and blaj^k,
[and all his property, to the operation of the constitution and laws
)f that state, and according to them slavery could not exist in hTs^
liouse. The right to freedom thus acquired could never be
forfeited by removal to a slave state. 5 Other like decisions in
Southern courts were in Kentucky in 1820, i82i, 7 and 1825 ; 8
in Virginia in 1820 ; 9 in Mississippi in i8i8; 10 and in Missouri



1 4 Set. & Rawle, 218, Com. vs. Hambright.

2 Wheeler: "Law of Slavery," p. 383. Com. ex rel. Hall & Cook. Also Com. vs.
Robinson.

3 Federal Cases, 22. 151; 4 Wash. C. C., 396. Ex parte Simmons.

4 Dunn: "Indiana," p. 234. This is said to have been the law in Louisiana until
1846.

5 Wheeler: "Law of Slavery," pp. 335-338; Birney: "James G. Birney and His
Times," p. 263; 2 Mart. (n. s.), 401. Lunsford vs. Coqikllon.

6 Wheeler: "Law of Slavery," p. 339; Birney: "James G. Birney," p. 263; Kurd:
"Law of Freedom and Bondage," 2. 124; 2 A. K. Marshall, 467-479. Rankin vs. Lydia,

7 Dunn: "Indiana," p. 234.

8 Ibid.; 3 Monroe, 100. Bush s Rep. vs. White & Wife.

9 Wheeler: "Law of Slavery," p. 354. Griffith vs. Fanny.

10 Ibid. 340; Dunn: "Indiana," p. 233. Harvy & others vs. Decker & Hopkins.



Court Decisions: Questions of Freedom 229

in 1824^ 1827, 2 i828, 3 and 1830. 4 The Mississippi case is in
teresting because the point at issue was whether negroes taken
from Virginia to Indiana in 1784, residing there till 1816, and
then removed to a slave state, were freed by the Ordinance of
1787. In the course of the argument the judge said: "Slavery
is condemned by reason and the laws of nature. It exists, and
can only exist, through municipal regulations, and in matter of
doubt, is it not an unquestioned rule, that courts must lean in
favorem vitae et libertatis? " 5 Again: "According to the construc
tion of the defendant s counsel, those who were slaves at the
passage of the Ordinance must continue in the same situation.
Can this construction be correct? Would it not defeat the great
object of the general government? It is obvious that it would, and
it is inadmissible upon every principle of legal construction."
Unfortunately the courts of the Northwest Territory and the
subsequent states did not always so construe the Ordinance.

An often quoted case is Rankin vs. Lydia, in Kentucky. Judge
Mills, who delivered the opinion of the court, utterly disclaims,
any degree of influence by "the general principles of liberty which
we all admire," but deals simply with " the law as it jg, and not as
it ought to be." He asks to whom Lydia belonged during the
seven years residence in Indiana. Not to the resident of Kentucky
to whom she had belonged originally, for he had sold her ; not to the
citizen of Indiana who had paid the money for her, because it was
impossible under the Ordinance of 1787. Therefore she must have
been her own property. Hence no future sale by another could
give a right to her services. At all events, the purchaser in Indiana
at the end of the seven years could not have had the right to her
services while in Indiana. "And is it to be seriously contended
that so soon as he transported her to the Kentucky shore, the nox
ious atmosphere of this state, without any express law for the pur
pose, clamped upon her newly forged chains of slavery, after the
old ones were destroyed ! For the honor of our country, we can
not for a moment admit that the bare treading of its soil, is thus
dangerous, even to the degraded African." 6

1 Moses: History of Illinois, i. 325; I Mo. Sup. Court, 472. Winny vs. Whitesides.

2 African Observer, October, 1827, p. 204; The Genius of Universal Emancipation,

7- "5-

3 2 Mo. Sup. Court, 20 (La Grange vs. Chouteau), 36 (Milly vs. Stephen Smith).

4 2 Mo. Sup. Court, 214. Vincent vs. James Duncan.

5 Wheeler: " Law of Slavery," p. 340; Dunn: " Indiana," p. 233.

6 2 A. K. Marshall, 470-479.



230 Court Decisions : Questions of Freedom

The case in Missouri in 1830 is especially interesting, partly
because it came so near to the close of the period, and partly be
cause of its breadth. It asserted that if the owner of slaves took
them to Illinois to reside, they were free ; if he stayed in Kentucky
and sent the slaves to Illinois, they were free; and that a slave
residing at the Ohio Saline as a laborer in 1817 was entitled to
freedom. 1

In North and South alike the onus probandi was on the pure
negro in any claim for freedom. 2 For "persons of color" the rule
was often different. In Ohio a decision in 1821 settled the prin
ciple that quadroons and others between whites and mulattoes had
all the rights, privileges, and duties of whites. 3 In an appeal case
in Virginia in 1811 it was held that if by ordinary inspection by
a jury the plaintiff appeared to be white, the onus probandi was on
the person claiming him as a slave. 4 That no presumption of
slavery arose from the color of a mulatto was settled in North
Carolina in i828. 5 In Louisiana, in 1810, a person of color was
presumed free, 6 and in 1812 "a woman being of color, the pre
sumption is that she was born free." 7 The same presumption
was held in 1816 to entitle the petitioner to freedom under the
old Spanish law, the parol evidence by five witnesses; 8 and in
1829 the decision was again reaffirmed, that presumption of slav
ery was confined to blacks. 9 Color arising from descent from
Indians was in no case assumed as proof of slavery, but the
reverse. 10

Even in those cases where the onus probandi was by law on the
petitioner for freedom, other conditions were often allowed by the
courts to reverse the pres . mption arising from color. Judge Spen
cer of New York said in 1817, in a case of emancipation by two out

1 2 Mo. Sup. Court, 214. This seems to cover every possible construction of the
Dred Scott case.

2 Wheeler: "Law of Slavery," p. 392, etc. Remick vs. Chloe; and in many other
authorities.

3 The Genius of Universal Emancipation, i. 70.

4 Wheeler: "Law of Slavery," p. 22. Hook vs. Nanny Pagee.

5 Ibid. p. 406; i Dev., 376 (Scott vs. Williams); Stroud: "Sketch of the Laws
relating to Slavery," edition of 1827, pp. 80, 81, edition of 1856, pp. 127-129 (Gobu vs.
Gobu; date not given).

8 i Martin (o. s.), 183. Adelle vs. Beauregard.

7 Wheeler: "Law of Slavery," p. 7; 2 Martin (o. s.), 208; State vs. Cecil.

8 4 Martin (o. s.), 348. Beard vs. Poydras.

9 7 Martin (n. s.), 648. Pilie vs. Lalande et al.

10 Wheeler: "Law of Slavery," p. 18. (Butt vs. Rachel et al; Ulzire vs. Poey Fane);
i Mart. & Yerger, 4 (Vaughan vs. Phebe).



Court Decisions : Questions of Freedom 23 1

of three joint owners, that " all presumptions in favor of personal
liberty ought to be made" ; a person must be either slave or free; 1
and this feeling seems quite common in all parts of the country.
In the same case (Oatfield vs. Waring) a second point was that
bringing an action against a slave is a concession that he is free and
cannot be claimed as a slave. 2 In New York parol declarations
made twenty years before by the owner of a slave that he purchased
her to set her free, and that he meant her to be freed, were held in

1812 to be evidence of manumission. 3 A reputation for freedom,
and proof of actual enjoyment of freedom for more than twenty
years, was considered in New Jersey, in 1826, to overcome the pre
sumption of slavery from color. 4 A similar case had occurred in

1813 in the same state, where a black witness reputed free from
childhood was sworn without other proof of freedom. 5

In Louisiana, in 1816, there was a noteworthy decision, which
gives the advantage to an alleged slave, contrary to the usual rule
that the onus probandi was on the negro. As proof of slavery was
offered a bill of sale, executed in 1803 in Detroit, Michigan, and
several witnesses testified that he had been before that time com
monly reported to be a slave. The lower (parish) court declared
the man a slave. On appeal, Martin, the appellate judge, decided
that a negro will be presumed free though purchased as a slave, if
the purchase was made in a country in which slavery is not tolerated,
unless it be shown that he was before in one in which it is. 6 In
the same year, 1816, it was held in South Carolina that where a
person who moved to that state from Maryland, bringing a slave
girl with him, whom he held in servitude all his life, had been
heard to acknowledge that the girl s mother was free, it was evi
dence sufficient to offset the presumption by color, to establish
her freedom, and entitle her to damages. 7

Possession of freedom for twenty years was in Louisiana con
sidered as conclusive right to freedom under the old Spanish law ; 8

1 Wheeler: " Law of Slavery," p. 310. Oatfield vs. Waring.

2 Ibid. p. 385.

3 Ibid. p. 404; 9 Johnson, 144. Wells vs. Lane.

4 Wheeler: " Law of Slavery," p. 392; 3 Halstead, 275. Fox vs. Lambson.

5 2 Pennington, 1030. Potts vs. Harper.

6 Wheeler : " Law of Slavery," p. 349; 4 Martin (o. s.), 385. Forsyth et al vs. Nash.

7 i Mill, 137. Pepoon, guardian of Phebe vs. Clarke.

8 The Spanish law allowed freedom to a slave who had lived as free for 15 years in
the presence of her master, or for 20 years in his absence, without interruption. In the
case on trial these conditions had not been fulfilled. Wheeler: "Law of Slavery,"
p. 103; 6 Mart. (o. s.), 16. Metayer vs. Metayer.



232 Court Decisions : Questions of Freedom

and it was declared that a slave who enjoyed that right in His-
paniola after the passage of the emancipation law by the French,
might reckon that time in establishing her right to freedom under
that law. Actual enjoyment of freedom was considered in 1829
as prima facie evidence of freedom. 1 Deeds of manumission,
properly executed, were in 1821 2 and 1826 3 held as sufficient evi
dence of freedom, although no proof could be shown that they had
been made by the owner of the slave. Cases in some respects
similar to that of Oatfield vs. Waring in New York are found in
Maryland in 1817 4 and i82i, 5 where it was decided that the devise
of property, real or personal, to a slave, by the owner, entitled the
slave to " freedom by implication," since by law no slave could in
herit or hold property. According to some authorities all pre
sumptions in Missouri prior to 1830 were in favor of freedom, save
where the law was too plain to admit of possibk doubt, 6 and the
cases seem to bear out that statement.

Many Southern states forbade emancipation, save under speci
fied conditions, and nearly all insisted upon more or less tedious
formalities. 7 In three cases in 1829, in as many states, these for
malities were set aside. In Kentucky it was decided that a slave
might be emancipated by any instrument of writing; it was not
even necessary that it be sealed and recorded, though it might be
if the holder wished it. 8 A general law in Maryland that a slave
could not receive a legacy was set aside in the case of a bequest of
freedom. 9 And in Virginia, a decision declared that when a testator
directed that his slaves should be emancipated by his executor,
the will should be held to have emancipated them. 10 It was deter
mined in the District of Columbia as early as 1813 that an informal
deed of manumission, accompanied by actual enjoyment of free
dom, before the commission of a certain offence, followed by a
formal deed of manumission after the offence, was sufficient evi-

1 7 Mart. (n. s.), 649. Pilie vs. Lalande et al.

2 10 Mart. (o. s.), 425. Brown vs. Compton.

3 4 Mart. (n. s.), 203. Simmins vs. Parker.

4 4 H. &. J., 262. Burroughs Adm. vs. Negro Anna.

5 5 H. & J., 190. Wheeler: "Law of Slavery," p. 385. Hall vs. Mullin.

6 Dunn: "Indiana," p. 227.

7 Constitution of Alabama, 1819, Art. "Slaves," i. (Code of Ala. (1896), vol. ii,
56, 57); Hutchinson s (Miss.) Code, 34, 523; Acts of 1820 (S. C.), 22; 2 Bailey (S. C.),
Rep., 139 (2 Faust. 356-357) ; and in general in all Southern states.

8 2 J. J. Marshall, 230. Fanny vs. Dejarnet s Adm.

9 2 Bland, Chan., 314. Hammond vs. Hammond.

10 i Leigh, 465. Dunn vs. Amey and others.



Court Decisions: Questions of Freedom 233

dence that the person was not a slave at the time of committing the
offence; 1 and in 1830, that the manifest intention of a will to eman
cipate should be held sufficient, even though there was a failure to
use the proper words. 2

In both the North and the South, when emancipation was once
consummated the former slave was under the protection of the
state and could not be reenslaved except as punishment for crime.
A resident of Virginia directed by will that a negro slave should be
free after the expiration of his apprenticeship, and the executors
agreed and let him go free. Later he was sold, but when the matter
was brought into court in 1823 the sale was held void. 3 In 1824 it
was decided in the District of Columbia that a slave who had been
manumitted and had lost her deed of manumission was entitled
to relief in equity. 4

The principle was settled in Kentucky in 1830 that no slave once
manumitted should be sold for debt, if the original creditor had
s* been willing to lose the money. The case was Ferguson vs. Sarah.
Sarah had been bought in 1809 by an abolitionist, Enoch Smith,
for the purpose of emancipation. In accordance with this plan he
sold her to her husband, Ben, a free man of color, taking his notes
for the amount. Smith later became embarrassed, and desiring
that Sarah should be freed while it was in his power, he allowed
Ben to make out the deed of manumission, though he had not paid
in full. Sarah lived as a free woman from 1809. In 1818 Ben died
intestate and without having completed the payments, and Smith
died in 1825. Ferguson, the administrator of Smith, was about to sell
Sarah to pay Ben s debt to Smith, when an injunction was awarded



Online LibraryA. D. (Alice Dana) AdamsThe neglected period of anti-slavery in America (1808-1831) → online text (page 24 of 32)