property to which he had a claim, and not with a felonious intention. In an action to try the right of property, quo animo, makes no part of the case. And it is no answer to say, that if the defendant has any right, he may show it; for after the plaintiff has established his right, the defendant may be satisfied that it is in vain to contend farther. Indeed, in such a case, it would be for his interest not to do it, if he might thereby give the case the appearance of felony, and nonsuit the plaintiff, after having established a right to the property. I am of opinion a new trial ought to be granted.

Justices Bay and Grimke concurred.

A fugitive slave con

other state,

cess out of

of his mas

reclaimed him-the

(XVIII.) OF RUNAWAY OR FUGITIVE SLAVES.

1.

GLEN V. HODGES. Jan. T. 1812. 9 John's Rep. 67.

Trespass for taking the plaintiff's man slave. The plaintiff, the tracting a owner of the slave, went into Vermont after his runaway slave, debt in an- who had fled from him in this state, and had resided in Rutland, will not Vermont, four years as a freeman. After the slave was taken by justify the creditor the plaintiff, the defendant took out an attachment against the slave forcibly taking him for debt, on which he was arrested and forcibly taken out of the on a pro- plaintiff's possession, and sent to prison. The judge who tried the the hands cause thought the plaintiff was not entitled to recover, and a nonter who has suit was entered, with liberty to move the court to set it aside. Per Cur. There is no doubt the negro was the of the property plaintiff, and had run away from service in Vermont. He was held slave being to service or labor under the laws of this state, when he escaped, and the escape did not discharge him; but the master was entitled to reclaim him in the state to which he fled. This is according to the provision in the constitution of the United States, art. 4. § 2., and the act of Congress of the 12th of Feb. 793., Laws U. States, vol. 2. p. 165., prescribes the mode of reclaiming the slave. It not only gives a penalty against any person who shall knowingly and willingly obstruct the claimant in the act of reclaiming the fugitive, but saves to such claimant "his right of action for any injury" he may receive by such obstruction. The plaintiff was,

contract

with the

void.

therefore, in the exercise of a right, when he proceeded to reclaim
the slave; and the simple question is, whether the defendant is not
responsible in trespass, for rescuing the slave, though he did it un-
der the form and color of an attachment for a debt, alleged to
have been contracted with him by the slave. The negro being a
slave, was incapable of contracting so as to impair the right of his
master to reclaim him. A contrary doctrine would be intolerable,
so far as it respects the security of the owner's right, and would
go to defeat the provision altogether. The defendant, therefore,
contracted with the negro, and sued out the attachment at his peril.
It was a fraud upon the master's right. The fact being esta-
blished, that the negro was a fugitive slave, the attachment was no
justification to the party who caused it to be sued out. This must
have been so adjudged, if the point had been raised in Vermont,
because the entering into a contract with such slave, and the en-
deavor to hold him under that contract, contravened the law of the
United States, which protects the master or owner of fugitive slaves
in all his rights as such owner.
If the slave had committed any
public offence in Vermont, and had been detained under the au-
thority of the government of that state, the case would have been
different, and the right of the master must have yielded to a para-
mount right. But the interference of any private individual, by
suing out process, or otherwise, under the pretence of a debt con-
tracted by the negro, was an illegal act, and void; and there can
be no objection to the action being brought here, though the act
happened out of the state. The action is transitory.

Motion for a new trial granted.

2.

THE COMMONWEALTH V. HALLOWAY. January T. 1817. 3 Serg. & Rawle's Rep. 4.

Habeas Corpus to the keeper of the Philadelphia prison, at the instance of the master, to bring up the body of David Johnson, his slave, who had been committed for fornication and bastardy. It was contended, that the master could not take away his slave charged with a crime. That it had been so decided by Judge Rush, in Nov. 1816, and before the Chief Justice, 1814.

Per Cur. Tilghman, Ch. J. From the evidence which has been given, we have no doubt of David Johnson being the slave of Mr. Frazier; and there would be no objection to delivering him up

A fugitive slave who

has committed fornication

and bastardy, will not be deliver

ed to the master un

less security be given

to maintain

the child.

Taking up

a slave as a

to him, but for the commitment for fornication and bastardy. Fornication has always been prosecuted in this state as a crime. By the law of 1705, it was subject to the punishment of whipping, or the fine of 10 pounds, at the election of the culprit. The punishment of whipping has been since abolished; but the act of fornication is still considered as a crime; and where it is accompanied with bastardy, security must be given to indemnify the county against the expense of maintaining the child. It may be hard on the owner to give this security, or lose the services of the slave; but it is an inconvenience to which this kind of property is unavoidably subject. The child must be maintained; and it is more reasonable that the maintenance should be at the expense of the person who has a right to the service of the criminal, than at that of the people of this city, who have no such right. I am of opinion the prisoner should be remanded. Yates and Gibson, Js., concurred.

3.

JARRETT V. HIGBEE. Oct. T. 1827. 5 Monroe's Rep. 546.

Jarrett brought trespass against Higbee for taking and imprisoning runaway in his slave. Defendant pleaded that he apprehended the slave as a good faith runaway, &c. The defendant admitted, that when he took the reasonable slave up, he produced the following pass or paper from his master: ground is a justification.

and upon

"Know all men by these presents, that I, J. Jarrett, of Livingston, and state of Kentucky, do agree that this black man Allen, do bargain and trade for himself until the first day of May next; and also for to pass and repass from Livingston county, Kentucky, to Monongahela county, state of Virginia, Morgantown, and then to return home to the same Livingston county, Kentucky, again, near the mouth of Cumberland river, Smithland. Given under my hand this 26th day of Sept. 1822."

The plaintiff moved the court to instruct the jury, that if they believed that the slave was possessed of the pass produced in evidence, and did exhibit it to the defendant when taken up, and that the same was executed and delivered to the slave by the master, it should have protected him, and his arrest was illegal. The court refused to give the instructions prayed for; but instructed the jury, that if the defendant took up the slave in good faith, having reasonable grounds to suspect he was a runaway, he was justifiable.

Per Cur. Bibb, Ch. J. The instructions asked, supposes that Higbee, and all others, were bound at their peril to yield obedience

cannot assent.

to the permit contained in the paper exhibited. To this the court The paper contains, on the part of the plaintiff, an agreement that the slave shall bargain and trade for himself, from the 26th September, till the first of May, and pass and repass from Livingston in Kentucky, to Morgantown in Virginia. However well satisfied the master may have been to turn his slave loose upon society, to bargain and trade for himself, and to ask society to it, yet it does not follow that society was bound to submit to it.

Without attempting to define what shall be the form of a lawful pass, or permit, to a slave, it may be safely affirmed, that no paper can be such a one, which on its face is a violation of public policy, and the security of society; which shows that the slave is going at large, to do that which is forbidden expressly by the statute law. That slaves shall not be frivolously arrested, when proceeding on the lawful business of the owner, or when acting in their proper and lawful sphere, by permission of the owner, is due to the master and his right of property. That the master shall not let loose his slave, with a permit from him to violate the established order and economy prescribed by law in relation to slaves, is due to society. These interests of the master on the one hand, and of society on the other, are concerned in the question involved in this controversy. But without abridging the lawful powers of the master, to use his property in the slave, it may be safely declared that this paper given by the master in the slave violated that duty which he as owner owed to the laws and to society.

The paper contained the master's assent and permission to the slave to go at large from September to May; from Smithland to Morgantown, to bargain and trade for himself, contains an authority to hire himself, as well as to buy and sell, and deal in articles and commodities without a specification or limitation. These permissions, and such acts of the slave, are violations by master and slave, of the policy, spirit, and letter of the statute 16th Dec. 1802, against permitting slaves to go at large and hire themselves. 2 Dig. 1159.; and the 12th sect. of the act of 1789, 2 Dig. 1152., against buying, selling, or receiving to, or from, or by a slave without a note in writing from the master expressive of the article. To pass and repass from Smithland to Morgantown, from the extreme southwestern to the northeastern limit of the state, and beyond into Virginia, to range in this direction from September to May, bargaining and trading for himself, is certainly going at large in

The provi

sions in the statute for

the sale of

runaway

slaves, are merely directory,

utes.

hostility to the settled order intended to be maintained by our statSuch licenses would tend to beget idle and dissolute habits in the particular slaves so indulged, as well as in others, and lead to depredations upon the property of others, and to crimes and insubordination. To such licenses and indulgences society are not bound to submit; the master has no right to give such. Every person to whom such a permit was exhibited by a slave, might well suspect its authenticity. It was not a lawful pass or permit, it was a species of temporary and unlawful manumission; unlawful in its purpose and duration, wanting the solemn form, sanction, authentication, and safeguard, as a deed of emancipation, and by its terms and purposes, showing that the slave was not proceeding upon the lawful business of the master, but at the will and for the purposes of the slave himself.

4.

JARRETT V. HIGBEE. Oct. T. 1827. 5 Monroe's Rep. 546. The court held, that reasonable grounds to suspect the slave a runaway will justify taking him up.

The warrant of commitment by the justice is evidence of probable cause.

5.

HUTCHINS V. LEE. Dec. T. 1827. Walker's Mississippi Rep. 293. Per Cur. Turner, J. In this case, we have been furnished with an elaborate and able report of the judge who presided at the trial of the cause in the Claiborne circuit court, which we here insert. This report is so full, and the subject placed in a view so perspicuous, that and a non- there is nothing left for this court but to give the case due consideracompliance with tion. After mature reflection, and a careful examination of the authese pro- thorities cited in the report, I concur entirely with the opinion of the does not court below, and with the principles and reasons therein contained. the sale. If The judgment of the court below is, therefore, affirmed.

visions

invalidate

the slave

sell for less

money, be

cause of

any neg

lect in the sheriff to

Judges Black and Winchester concurred.

Report-By Hon. Judge CHILD.

Appeal from the circuit court of Claiborne county. As the deperform his duty the re- cision under consideration in this case was made on the circuit by medy is by the judge of the first district, by art. 5. sec. 2. of the constitution, against the it becomes my duty to report to the supreme court the reasons

an action

sheriff for

damages. upon which that opinion was founded. This was not a hasty, in