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.

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

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."

2

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

' 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 individ uals 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

66

'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.

stitution of the United States, on the pretence that such person" is so held and has escaped, shall be punished by fine and imprisonment. 8. Persons sustaining the injury above specified may sustain action for damages. 9. No person holding any office under the State may issue warrant or process, or grant certificate, under the laws of Congress of 1793 and 1850. 10. Penalty by loss of office and future disqualification. 11. Attorney for claimants of fugitives disqualified from acting thereafter as counsel or attorney in the State courts. 12. The preceding two sections not to apply to removal from judicial office, but the performance of the actions therein specified shall be sufficient for impeachment, as violation of good behavior. 13. No person qualified to issue warrant and certificate, in virtue of office under the United States, may at the same time hold office under the State. 14. Judicial officers who continue to hold the office of U. S. Commissioner deemed to violate good behavior, and made liable to removal. 15. State officers, sheriffs, &c., declared punishable by fine and imprisonment for arresting persons claimed as fugitives. 16. The volunteer militia forbidden to act in seizing, &c., and declared punishable in like manner. 17. The governor to appoint county commissioners to defend persons claimed as fugitives. 18. To be paid by the State. 19. State jails not to be used for the detention of persons claimed. 20. Habeas-corpus laws to apply to these cases. 21. Act declared not applicable to fugitives from justice.' 22. Inconsistent acts repealed.'

1858, c. 175. An act to amend the above. Sec. 1. Forbids the tenure of judicial office under the State, except the office of justice of the peace, by persons holding such office under the United States, or the office of United States Commissioner, and forbids any justice holding the latter office to issue any process or try cause. 2. Limits the fifteenth and sixteenth

1 An act in relation to fugitives from justice, Laws of 1857, c. 289, provides that person arrested as such shall not be delivered up "until he shall have been notified of the demand made for his surrender, and shall have had opportunity to apply for a writ of habeas corpus, if he shall claim such right of the officer making the arrest. The act of 1859, c. 81, prescribes the evidence without which such delivery shall not be made. Gen'l Stat, ch. 177, §§ 1-3.

Returned by the governor (Gardner), with objections, and passed by a twothird vote of both branches of the Assembly.

VOL. II-3.

sections of the amended act. 3. Repeals the tenth, eleventh, thirteenth, and fourteenth sections. Gen'l Stats. c. 144, § 67.

$546. LEGISLATION OF THE STATE OF MAINE.'

1819.-State Constitution adopted by a convention. Art. 1, sec. 1. That "all men are born equally free and independent, and have certain natural," &c., &c. In some sections rights are attributed to "every citizen," in others, to "every person.' Art. II. sec. 1, declaring the elective franchise, makes no distinction of color. The militia law of 1821 specifies whites as liable to duty. R. S. of 1821, ch. 144, § 1.

1821. An act for the protection of the personal liberty of the citizens and for other purposes.' R. S. of 1821, c. 22, sec. 1. Declares the punishment for removing "any person lawfully residing and inhabiting therein to any part or place without the limits of the same without his consent," except for military defence or when "sent by due course of law to answer for some criminal offence." No special reference is made to fugitive slaves. A law regulating marriage, declares "all marriages between a white person and any negro, Indian, or mulatto shall be absolutely void." R. S. of 1821, c. 70, § 2. R. S. of 1847, c. 59, sec. 3.

1838, c. 323. An act against kidnapping or selling for a slave, "without lawful authority." R. S. of 1857, c. 118, $ 19.

1855, c. 182. An act further to protect personal liberty. Sec. 1. State judges and justices of the peace forbidden to take cognizance of cases under Acts of Congress of 1793 and 1850. 2. Sheriffs, &c., shall not assist in arresting those claimed as slaves. 3. Penalty on justices of the peace, sheriff, &c. 4. Not to be construed to affect officers of the United States. Additional is c. 43 of 1857, making it the duty of the county attorney to defend persons claimed as slaves. But these acts appear

'Act of Congress for the admission of Maine into the Union, March 3, 1820. III. Stat. U. S. 544.

2 An act of 1821 and of 1838, c. 330, authorize the governor to deliver up persons charged as fugitives from justice. R. S. of 1821, c. 113, § 2; R. S. of 1840, c. 174, § 2; R. S. of 1857, c. 138, § 5. In the index to R. S. of 1830-33, the titles slaves, negroes, &c., do not appear.