2 U.S. 224
2 Dall. 224
1 L.Ed. 358
Supreme Court of Pennsylvania
April Term, 1795
This was an indictment, on the 7th section of the act supplemental to the act for the gradual abolition of slavery (2 Vol. Dall. Edit. p. 589) which is expressed in the following words: 'If any person or persons shall, from and after the passing of this act, by force or violence, take and carry, or cause to be taken and carried, or shall by fraud seduce, or cause to be seduced, any negro, or mulatto, from any part or parts of this state, to any other place, or places whatsoever, with a design and intention of selling and disposing, or of causing to be sold, or of keeping and detaining, or of causing so to be, as a slave, or servant for term of years, every such person and persons, their aiders and abettors, shall, on conviction,' forfeit L 100, and be confined at hard labour for any term not less than six months, nor more than twelve months. The indictment contained two counts; the 1st charging the defendant with fraudulently seducing negro Toby from Pennsylvania into New Jersey, with a design to enslave him: and the 2nd charging him with fraudulently causing negro Toby to be so seduced, for the same purpose.
Upon the evidence in support of the prosecution, it appeared, that negro Toby had been brought upon a temporary visit to Philadelphia, as a servant in the family of General Sevier, of the State of Virginia; that when General Sevier proposed returning to Virginia, the negro refused to accompany him; that after several propositions for securing him, the defendant told Mr. Sevier, that there was no way of managing the matter effectually, but by inducing the negro to go into New Jersey, and then to lay hold of him; that Toby was forcibly sent by General Sevier, to Cooper's-Ferry, whither the defendant went on purpose to secure, and actually did secure him; that after some severity towards the negro, Gen. Sevier arrived at the same place, and demanded Toby's pocket-book, which Toby, however, delivered to one of the witnesses, saying, 'it contains my freedom papers'; that the witness delivered the pocket-book to General Sevier; and that, finally, the defendant and General Sevier put Toby on board of a boat, and carried him down the river.
The evidence, on behalf of the defendant, proved, that Toby was a slave, belonging to the father of General Sevier, who had lent him to his son, merely for the journey to Philadelphia; and several witnesses, who had known Toby as a slave for more than ten years, were examined, to repel the idea, suggested by the negro himself, that he had ever been emancipated.
As soon as the testimony was closed, the Court stopped the defendant's counsel, M'Kean and Porter, who were about to argue the case, and declared that it was unnecessary to make a single remark in his defence.
Hallowell and Lewis, in support of the prosecution, attempted to establish three position 1st. That the defendant had seduced negro Toby from this, into another, state, with an intention to enslave him: 2nd. That the fact of Toby's being a slave did not satisfactorily appear: And 3rd. That even if the fact of his being a slave was proved, the offence of seducing a negro slave out of the State, in order still to keep him in slavery, was a punishable offence, under the act of Assembly; which in the 7th section (differing from the other sections of the act) does not discriminate between the seduction of a negro, or a mulatto, whether he is a freeman, or a slave; and, if the law is positive and plain, neither the Court, nor Jury, can resist, or modify it. 4 Bl. Com. Vaugh. 159. 37. 1 Burr 100. 2 Ld. Ray. 1423.
The Chief Justice, after stating the counts in the indictment, and the evidence, delivered a charge to the Jury, in the following manner.
M'Kean, Chief Justice.
The severity of the punishment to be inflicted in case of a conviction (a punishment the same, in its nature, as is inflicted for the most infamous crimes) ought certainly to induce the Jury to deliberate well, before they determine, that the act committed by the defendant, constitutes the offence, which is the object of the law. The extravagant operation and extent of the doctrine, on which the prosecution is maintained, ought also to awaken the most serious attention: For, it has been contended, in effect, that should a traveller bring into this state a negro or mulatto slave; nay should a tradesman of Pennsylvania have a negro or mulatto indented servant, who, being sent on an errand, loiters away his time in tippling and debauchery, the master cannot forcibly seize and carry the delinquent to another place, either beyond, or within the jurisdiction of Pennsylvania, without incurring the penalties of the act of Assembly; if it is intended afterwards to keep and detain the negro or mulatto as a slave or servant. Is it rational to conceive, that any legislative body would have destined for such an act, so grievous a punishment! Again: It has been alledged, that the law has made no difference, and, therefore, that the Court can make none, between a freeman and a slave, provided the injured party is a negro, or mulatto. But is it possible, that any individual of common sense, that any assemblage of enlightened men, should so confound the nature of things, should so pervert the principles of justice, as to suppose, that it is as criminal for a master to carry off his own slave with the intent to retain him in slavery, as for a stranger to carry off a freeman, with the intent to sell him into bondage! Can these actions merit the same degree of punishment!
It is evident, however, that such enormities are not imputable to the Legislature of Pennsylvania. By the 10th section of the act for the gradual abolition of slavery (1 vol. Dall. Edit. p. 841) persons merely sojourning in this State have a right to retain their slaves for a term of six months; and the delegates in Congress from other States, Foreign Ministers, and Consuls enjoy that right, as long as they continue in their public characters. The succeeding section, likewise, expressly provides, that absconding slaves shall derive no benefit from the law; but that their masters shall have the same right and aid to demand, claim, and take them away, that they had before. This act of Assembly, and particularly these provisions, are not repealed by the supplemental act, on which the prosecution is founded. Then, we find, that any traveller, who comes into Pennsylvania, upon a temporary excursion for business, or amusement, may detain his slave for six months; and the previous law (recognized by the act of Assembly, during that term) authorizes the master to apprehend the slave, and entitles him to the aid of the civil police to secure and carry him away. By a regulation of this kind, the policy of our own system is reconciled with a due respect to the systems of other States and countries; while an opposite construction would render it impossible for any American, or Foreigner, to pass with a slave through the territory of Pennsylvania.
It has been said, that the words 'slaves or servants,' which are used in the other provisions of the supplemental act, being omitted in this section, it must be inferred, that the Legislature intended to protect the slave or servant, as well as the freeman, from the outrage contemplated: but, in our opinion, that very omission shews the fallacy of such a construction; for, if the Legislature designed to protect freemen, and not slaves, they could not, in any other way, more effectually manifest their meaning. In short, the evil apprehended was that of forcing a free negro, or mulatto, into another country, and there, taking advantage of his color, to sell him as a slave; and for such an offence the punishment denounced by the law would be justly inflicted.
Upon a review of the facts, likewise, we find occasion to regret, that the prosecution should have been conducted with a zeal, which rarely appears in the prosecution of the highest criminal, on the strongest proof. There is not, however, a tittle of evidence to establish the charge, that the defendant seduced the negro, or that he even spoke to him in Pennsylvania, where the act of seduction must by committed, to vest the jurisdiction in the Court. Nor can it be fairly said; that he caused the negro to be seduced; for, the advice given to General Sevier was merely the advice of a friend; which could not surely merit the ignominious punishment of the law; and which was not, in fact, adopted, as the negro was forcibly, and not by seduction, sent out of the State.
But, upon the whole, we were unanimously of opinion, as soon as it was proved the negro was a slave, that not only his master had a right to seize, and carry him away; but that, in case he absconded or resisted, it was the duty of every magistrate to employ all the legitimate means of coercion in his power, for securing and restoring the negro to the service of his owner, whithersoever he might be afterwards carried.
Verdict, Not Guilty.
Last modified: September 29, 2009