No. 164.

Book 1, part 1, tit. 1, chap. 4, sec. 2, § 5, art. 1, 2.

No. 167.

§ 5.-Of Freemen and Slaves.

Art. 1.-Of Freemen.

164. A freeman is one who has a right to do whatever he pleases, not forbidden by law; one in the possession of the civil rights enjoyed by the people generally. (a) It is not necessary that a man should have any political power to be a freeman; an alien may be a freeman as well as a citizen. Although he may be liable to serve another for a period of time, still he is a freeman, if such service has arisen in consequence of his agreement; as in the case of an apprentice, who has bound himself to serve another for a definite period. Nor would a servant bound to serve another for a certain period, be less a freeman by his liability so to serve.

Art. 2.- Of Slaves.

165. A slave is one who is by law deprived of his liberty for life, and who is the property of another. One who has been kidnapped or stolen away, or a freeman who has been taken by robbers and reduced to slavery, is not a slave. And a citizen of the United States, taken captive by barbarians and reduced to slavery, does not lose either his political or civil rights

on that account.

166. By the natural law all men are created free,(b) and no man can be reduced to slavery but by virtue of some law. The general government of the United States does not sanction or establish slavery: the state governments, where that institution exists, have authorized it by law; for without such authority it has no existence whatever. (c)

167. It is a maxim of law, that the child follows the condition of the mother, partus sequitur ventrem.(d)

No. 168.

Book 1, part 1, tit. 1, chap. 4, sec. 2, § 5, art 2.

No. 168.

The child of a female slave is therefore a slave, whoever may have been its father. (a) But the child of a female slave, born in a free state where slavery is not recognized by law, is free. (b)

168. A slave has no political nor any civil rights, while subject to his condition of slavery.(c) But in a state where slavery is not allowed, a man, who is a slave by the laws of his domicil, may maintain an action in his own name for a personal tort committed against him within that jurisdiction; (d) for by the law of nations, no state is bound to recognize slavery in another state. (e)

The Constitution of the United States(f) provides, that "no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due." Interpreted by the common rules of construction, by which alone it must be understood, the clause is not clear of difficulty; but

(a) By the Roman law, the child of a female slave was free, if, at the time of the conception, the mother was free; or if, being a slave, she was manumitted during the pregnancy, and again became a slave before the child's birth. Inst. lib. 1, t. 4. In Kentucky, it was held that when a testator by his will directed that a female slave should be free at a certain age, her children, born after the death of the testator, and before the period arrived, were held to be slaves. Ned v. Beale, 2 Bibb, 298. In New Jersey, where a testator directed his executors to sell a slave for fifteen years, and at the end of that time to be free," she was considered free from the time of the sale; and a child born afterwards, and before the end of the fifteen years, was adjudged to be free also. State v. Anderson, Coxe, 36. In Pennsylvania, it has been held that when a pregnant slave absconded from another state, and gave birth to a child in Pennsylvania, the child was free. Commonwealth, v. Halloway, 2 S. & R. 305; Benjamin v. Armstrong, 2 S. & R. 392.

(b) Jackson v. Bullock, 12 Conn. 38.

(c) Amy v. Smith, 1 Litt. 326; Lenoir v. Sylvester, 1 Bail. 633; Catiche v. The Circuit Court, 1 Miss. 608: Vincent v. Duncan, 2 Miss. 214; Hall v. Mullin, 5 Har. & John. 190; The State v. Hart, 4 Ired. 246; Gist v. Toohey, 2 Rich. 424; Jenkins v. Brown, 6 Humph. 299.

(d) Polydore v. Prince, Ware, 402.

(e) Prigg v. Pennsylvania, 16 Pet. 539.

(ƒ) Art. 4, s. 2.

No. 169.

Book 1, part 1, tit. 1, chap. 4, sec. .2, § 5, art. 2.

No. 169.

as the supreme court has given it a judicial construction, the subject must now be considered at rest.

Another important consideration has been urged, since this subject has unhappily agitated our country, whether congress possess any power to legislate upon the subject. From a very early period of our history, and when many of those who formed the constitution were in the councils of the nation, a law was passed by congress to give this clause its full operation. The act of 12th February, 1793, sec. 3, was passed`; and a still more stringent law was enacted by congress in 1850, to enable the owner of a fugitive from labor to recover him when he has fled into a free state. (a)

169. In some of the states slaves are considered as chattels, (b) and sometimes as real estate. (c) And under the special phraseology of certain acts, they are treated as persons.(d)

(a) It is not a little singular, that among the Romans there were laws not dissimilar to the acts of congress mentioned in the text. They declared a slave as a fugitive who staid away from the house of his master with an intention of running away and escaping from his search: the slave was not considered a fugitive who had only had the design of running away, even though he should have divulged his intention-he must have executed it. Dig. 21, 1, 17 and 43; Dig. 50, 16, 225; Code, 6, 1. 1. After the slave became a fugitive, if any one received him into his house in order to shelter him from the anger of his master, he became liable to an action, and the master could recover damages in an action called de servo corrupto. The law treated him who concealed a fugitive slave, in order to cause his evasion, with much severity: Is qui fugitivum celavit, fur est. Dig. 11, 4, 1. By a senatus consultum, authority was given to every military man, or even an individual, to enter into the lands of senators and other persons to search for fugitive slaves; and, by another law, the houses of the prince himself might be examined to search for them. But in order not too much to infringe on the rights of individuals, the persons who made the searches were to be authorized by the president of the tribunal, who would give an injunction, and send a serjeant to obtain access to the house intended to be examined. Poth. ad Pand. lib. 11, tit. 4, art. 1, n. 5. When found, the slave was to be brought before a magistrate, whose duty it was to deliver him to his master, if the latter's claim was established. In the provinces, when arrested, the slave was carried before the president of the province or the proconsul, who decided as to the right of the supposed master. Poth. ad Pand. lib. 11, 4—2, 7.

(b) 1 Walden v. Payne, 2 Wash. 1; McDonald v. Walton, 2 Mis. 48; Plumpton v. Cook, 2 A. K. Marsh. 450; Withers v. Smith, 4 Bibb, 170. (c) Wells v. Bowling, 2 Dana, 41.

(d) The State v. Edmund, 4 Dev. 340.

No. 170.

Book 1, part 1, tit. 1, chap. 4, sec. 2, § 6.

No. 171.

170. Manumission, which is an express act by the owner of the slave by which the latter is rendered free, has the effect to change the state of the slave, and he then acquires all the rights of a free man of color.

A slave may acquire his freedom, not only with the consent of his owner as above mentioned, but by implication, or by operation of law alone, as when a master takes his slave into a free state for the purpose of continued residence; or by a continued residence there, whatever may have been his intention, beyond the time allowed by the laws of such state, the slave becomes free.

He may also be manumitted by the last will of his master.

§ 6. Of White and Colored Persons.

171. A white person is one who is of the Caucasian race, without any mixture of African or aboriginal blood, or at most not a fourth part of such blood. (a) In the southern states, when a question as to the quantity of African blood in a person arises, it is left to the jury to find it as a matter of fact.(b)

The act of congress which authorizes the naturalization of aliens, confines the description of such aliens to free white persons. And many of the state constitutions require, as one of the qualities of a citizen or elector, that he shall be white.

A rule has been adopted in the slave states that color is presumption of slavery; (c) but in the free states this rule would probably be reversed, because there the presumption is that all men are free, and he who would rebut the presumption must establish the contrary fact.(d)

(a) Gentry v. McMinnis, 3 Dana, 382.

(b) State v. Davis, 2 Bailey, 558.

(c) Davis v. Curry, 2 Bibb, 238; Burke v. Joe, 6 Gill & John. 136; Rawlings v. Boston, 3 Harris & McHen. 139. The same rule prevails in New Jersey, Fox v. Lambson, 3 Halst. 275.

(d) The presumption of law is in favor of freedom. The State v. Dilla

No. 172.

Book 1, part 1, tit. 1, chap. 4, sec. 2, § 7, 8.

No. 173.

§ 7.-Of Nobles and Plebeians.

172. In some countries this distinction exists. A nobleman there, is one to whom some special privileges are granted, generally at the expense of the more deserving classes of the people.

A plebeian is one who belongs to the common people. Happily, in this country, the order of nobles does not exist the Constitution of the United States provides that "no title of nobility shall be granted by the United States."(a) And no state shall "grant a title of nobility."(b)

§ 8.-Of the Sane and Insane.

173. Sanity is the state of a person who has a sound mind; one who in his actions conforms to those of the bulk of mankind; one whom the law regards as capable to perform all civil duties, and to be responsible for his acts.

Sanity is always presumed.

Insanity is that state which induces a continued impetuosity of thought, which, for the time being, unfits a man for judging and acting in relation to the affairs of life with the composure requisite for the maintenance of the social relations: one who is deprived of the use of reason, after having attained the age when he ought to have it, either in consequence of a defect at his birth, or because of some accident which has happened since. (c)

This state is never presumed, but if once proved to exist, it will be presumed to have continued.

The insane man is deprived of his political and civil rights. He is represented by a guardian, curator, or committee.

hunt, 3 Harring. 551; State v. Griffin, 3 Harring. 559; Kinney v. Cook, 3 Scam. 232.

(a) Art. 1, s. 9, n. 7.

(b) Ibid. 1, s. 10, n. 1.

(c) Domat, Lois Civ. liv. 2, s. 1, n. 11; Ray, Med. Jur. § 24.