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Act of 1840-41, ch. 74, § 2. 661. $ 2. If any person shall hereafter secrete, or aid in secreting, any slave, free negro or mulatto, or send or aid in sending any slave, free negro or mulatto out of the county in which he or she shall have committed any of fence, to any place without this commonwealth, so that the said slave, free negro or mulatto cannot be apprehended and tried for such offence, he or she so offending, upon conviction before any justice of the peace, shall forfeit and pay not less than five, nor more than twenty dollars, recoverable before said justice; the said forfeiture to be for the use of the overseers of the poor of the county or corporation where the offence shall be committed : Provided, That nothing herein contained shall be so construed as to prevent the punishment of any person as an accessory after the fact; nor to authorize the prosecution of any person under this act, who shall bona fide sell, and cause to be carried out of the commonwealth, his or her slave.
67. $ 87. All the courts of law within this commonwealth shall constantly gives this act in charge to their grand juries, at the times when such grand juries shall be sworn; 'and the said courts are hereby declared to have cognizance of all offences against the provisions of this act, whether the same be triable before a single magistrate or otherwise; and on all convictions in pursuance of any presentment by a grand jury, the fines, forfeitures and penalties, which otherwise would have gone to an informer, shall accrue to the commonwealth, for the use of the Literary fund.' From Jan. 1801, c. 283, R. C.; Jan. 1806, c. 69, ed. 1808.
Act of January 17, 1818—January 1, 1820. R. C. ch. 124.
68. $ 4. When any person shall conceive himself or herself illegally detained as a slave in the possession of another, it shall and may be lawful for such person to make complaint thereof, either to a magistrate out of court, or to the superior court of law for the county, or the court of the county or corporation where he or she shall reside, and not elsewhere.(e) When the com
(e) The courts of chancery, as well as the garded. Hudgins v. Wrights, 1 H. & M. courts of common law, have jurisdiction 133; and see Isaac v. Johnson, 5 Munf. 95. under this act. Dempsey v. Lawrence, 1 The same strictness as to form, is not reGil. R. 333.
quired in actions for freedom as in other But the jurisdiction of equity only ex cases. Where such an action is brought by tends to cases where the pauper has a legal one person for himself and others who are right to freedom, but there is some impedi- infants, the declaration, trespass, assault, ment to the assertion of that right in a court &c., by the informal, is substantially good. of law. It cannot enforce a promise by a M'Michan v. Amos et al. 4 Rand. 134. But master, that he will emancipate his slave the courts will not infringe the settled rules after a certain condition is performed; which of law and evidence. Shelton v. Barbour, condition has been complied with. Sawney 2 Wash. 64, 67; Pegram v. Isabell, 2 H. & v. Carter, 6 Rand. 173. A contract between M. 193, 204 ; Mima Queen et al. v. Hepburn, master and slave cannot be enforced though 7 Cranch, 290, 295. it be fully performed on the part of the person appearing, from his complexion slave. Stevenson v. Singleton, i Leigh, 72. and features, to be a negro, is, in this com
An action of trespass for freedom is, in monwealth, presumed to be a slave, and it form, an action for a personal tort; in sub- is incumbent on him to make out his right stance, it is a remedy to try the question of to freedom: but in the case of a person apfreedom or slavery, and therefore two or pearing to be white, or an Indian, the premore may join therein. Coleman v. Dick et sumption is, that he is free, and it is neces. al. 1 Wash. 233, 238.
sary for his adversary to shew that he is a In suits for freedom, the courts do not slave. Roane, J. in Hudgins v. Wrights, 1 hold the parties to strictness of pleading; H. & M. 141. How is it in relation to perif the evidence substantiates the claim, the sons of mixed blood-to those of any colour case made by the pleadings will be disre- between the two extremes of black and
Act of January 17, 1818—January 1, 1820. R. C. ch. 124. plaint shall be made to a magistrate of such illegal detention, it shall be the duty of the said magistrate, forthwith, to issue his warrant summoning the owner or possessor of such complainant, to appear before him or some other magistrate of the county, to answer the complaint so made, and, upon his appearance, shall compel him to give bond with security, equal at least to the full value of such complainant, conditioned that he shall suffer him or her to appear at the next superior court of law, or court of the county or corporation, wherein he or she resides, for the purpose of petitioning the said court to be allowed to sue therein in forma pauperis, for the recovery of his or her freedom; and if such master or holder shall fail or deny to give security as aforesaid, such magistrate shall order the complainant into the custody of the officer serving the warrant, to be kept by him safely at the expense of such master or holder,(2) until the sitting of the first court that shall happen aster such judgment by him given, and produce him or her before such court. Dec. 25, 1795—Jan. 1, 1796, c. 189, R. C.
69. $ 5. When a petition shall be offered to any superior court of law, or to the court of any county or corporation, by any person or persons so complaining, it shall state the material facts of the case, which being proved by affidavit or otherwise, to the satisfaction of such court, the petitioner shall obtain counsel, to be assigned by the said court, who, without fee or reward, shall prosecute the suit of such complainant; but, before process shall issue upon the said petition, the counsel so appointed, shall make an exact statement to the court of the circumstances of the case, with his opinion thereupon; and unless, from such circumstances and opinion, the court shall see manifest reason to deny their interference,(1) they shall order their clerk to issue process against the owner to appear and answer the complaint, and, in the mean time, that such complainant shall be in the custody of the sheriff (5) until the owner shall give bond with security, either in court, or with the clerk
white? See Gobu v. Gobu, Tay. R. 164. emancipated persons as slaves, insisting that See Tucker, P. in De Lacy v. Antoine et al. the owner, at the time of the act of eman7 Leigh, 448. And (in a suit for freedom) cipation, was non compos; the court holds, if it appear to the jury, from inspection, upon the evidence, that the emancipator that the plaintiff is a white person, they was of sound mind at the date of the emanought to find a verdict in his favour; unless cipation, and decrees that the emancipated it be proved, on the other side, that he de persons shall be set at liberty. Yet, held, scended in the maternal line from a slave. that they are not entitled to an account of Hook v. Nanny Pagee et al. 2 Munf. 379. profits during their detention in slavery.
"In this country, I believe, no instance (No reasons assigned by court-a mere si. can be produced of profits being adjudged lent affirmance of decree below.) Henry et to a person held in slavery, on recovering al. paupers v. Bollar et al. 7 Leigh, 19. his liberty. Among a thousand cases of See on this subject, Peter . Steel, 3 palpable violations of freedom, no jury has Yeates's R. 250. "Where one does work been found to award, and no court has yet for another by compulsion, whom he is un. sanctioned, a recovery of the profits of la- der no legal or moral obligation to serve, bour during the time of detention.” Roane, the law will, I think, imply and raise a proJ. in Pleasants v. Pleasants, 2 Call, 343. mise on the part of the person benefitted “ The decree for profits is, I think, new and thereby, to make him a reasonable recomunprecedented." " Carrington, J. 348. And pense." Yeates, J. 255, delivering opinion by the court : "No account ought to be of court. See Livingston V. Ackeston, 5 taken of profits, it being unusual in such Cowen, 531. cases, and less reasonable in this very diffi- (2) See Rizey et al. v. Just. of Fauquier, cult one." p. 356. Negroes recovering free- gen'l ct. July T. 183), 3 Leigh, 811; Sarah dom by suit in forma pauperis, cannot, in v. Henry, 2 H. & M. 19; Whiting v. Daniel any case, recover profits or damages. Paup's et al. 1 H. & M. 403. adm'r et al. v. Mingo et al. 4 Leigh, 163. (1) An appeal will lie from the order of an An owner of slaves emancipates them by inferior court, refusing to grant leave to a deed; shortly after, the care of the person person held in slavery, to sue in forma pauand estate of the emancipator, is committed peris. Sam v. Blakemore, 4 Rand. 466. to a committee, which takes possession of the (5) See Hunter v. Fulcher, 5 Rand. 126.
Act of January 17, 1818—January 1, 1820. R. C. ch. 124. of the court, to have him or her forthcoming, to answer the judgment of the court; in which case the complainant shall be returned into the possession of the owner.(4) Ibid.
70. $ 6. If any person or persons shall be found aiding, abetting or maintaining any person in the prosecution of a suit upon a petition as aforesaid, and such person or persons shall fail to establish his or their claim to freedom, every person so found aiding, abetting or maintaining, shall forfeit and pay to the owner of such slave, or to the person who shall prosecute for the same, the sum of one hundred dollars for every person so complaining; to be recovered by action of debt or information, in any court of record within this commonwealth; and moreover be liable to an action on the case for damages arising therefrom to the party grieved thereby. lbid.
71. $ 7. In all cases wherein the property of a person, held as a slave, demanding freedom, shall come before a court for trial, no person who shall be proved to be a member of any society instituted for the purpose of emancipating negroes from the possession of their masters, shall be admitted to serve as a juror in the trial of the said cause. Jan. 25, 1798, c. 222, R. C.
72. $ 8. Every petition or suit instituted for the emancipation of a person held as a slave shall be tried at the next quarterly or superior court succeeding such petition or suit, without waiting its regular turn on the docket, unless good cause be shewn, by one of the parties, for a continuance thereof. Ibid. (See tit. Habeas CORPUS, ante, p. 484.]
. Act of February 9, 1819-January 1, 1820. R. C. ch. 241.
73. § 1. (If any person shall make oath before a justice of the peace for any county or corporation, that he has good cause to suspect, and verily believes that a runaway slave is harboured within said county or corporation, such justice shall thereupon issue a warrant to the person so applying for the same, authorizing a search for said slave; and if such slave shall be found and apprehended, he or she shall be dealt with and disposed of as is directed by an act, entitled “an act to reduce into one act the several acts for apprehending and securing runaways.” [Post. from No. 73 to 85, inclusive.] Provided always, That all warrants which may issue in virtue of this act, shall designate the plantation or lot, and the house or houses in which the search is intended to be made. Act of Feb. 25, 1824, Ses. Acts 1823-4, c. 35, $ 3; Sup. R. C. p. 237. See ante, No. 57; also, No. 9. See tit. Pilots, No. 50, for the reward to pilots for apprehending runaways on board vessels.] Any person may apprehend a servant or slave suspected to be a runaway, and carry him before a justice of the peace, who, if to him the servant or slave appear, by the oath of the apprehender, to be a runaway, shall give a certificate of such oath, and the distance, in his opinion, between the place where the runaway was apprehended, and that from whence he fled; and the apprehender shall thereupon convey the runaway to the last mentioned place, or deliver him to the owner, or some other authorized to receive him, or to the jailor of the county or corporation in which he was apprehended, and shall be entitled to five dollars, and to ten cents for every mile of such distance as he shall necessarily convey him, to be paid by the owner; and, if such runaway be committed to the jail of any county or corporation, the keeper thereof shall forthwith cause an advertisement, with a description of the runaway's person and wearing apparel, to be set up at the front door of the courthouse of his county
(4) If the petition be allowed, the court and for allowing him reasonable time to prewill make special orders, for the purpose of pare for his trial. Pr. Pendleton, in Coleman protecting the petitioner from the master's v. Dick and Pat, 1 Wash. 239. resentment, or ill treatment on that account,
Act of February 9, 1819–January 1, 1820. R. C. ch. 241. or corporation : Provided, That if the owner or overseer of such runaway, shall be an inhabitant of the county where such runaway is taken up, the taker-up shall, in that case, convey or deliver him or her to the owner or overseer, as aforesaid, and shall not be at liberty to carry such runaway to the jail of the county or corporation as is before directed. Oct. 1660-61, act 10, 2 Stat. Larg. 21; Oct. 1669, act 8, Ibid. 273; Oct. 1670, act 1, Ibid. 277; Oct. 1670, act 11, 2 Stat. Larg. 283; Oct. 1636, act 1, 3 Stat. Larg. 28; Oct. 1705, c. 49, $ 23, Ibid. 455; May 1726, c. 4, 4 Stat. Larg. 168; Oct. 1748, c. 14, § 14, fc. 5 Stat. Larg. 552, 3, foc.; Nov. 1753, c. 7, $ 17,6 Stat. Larg. 353; Oct. 1765, c. 25, 8 Stat. Larg. 135; Nov. 1769, c. 19, $3, 4, 5, Ibid. 358, 9; Oct. 1785, c. 85, 12 Stat. Larg. 192; Dec. 26, 1792, c. 131, R. C.; Feb. 1, 1808; Feb. 22, 1817, c. 36. [See post. 88.] [See also ante, tit. GaoLS, No. 15, p. 469.](1)
74. § 2. If the runaway die in jail, the expenses shall be defrayed by the public. 1792, c. 131, R. C. [Whenever hereafter any runaway slave shall be committed to the jail of any county or corporation within this commonwealth, the keeper of such jail shall endeavour to ascertain from the runaway the name and residence of his owner; and if from the statement of such runaway, or other circumstances, the same be probably ascertained, it shall be the duty of the jailor to write to the supposed owner, and to forward by mail to the post office believed to be the nearest to his residence a letter unsealed, containing a description of the runaway, with any other circumstances deemed material, the postage whereof shall be paid by the jailor, and charged with other expenses. And if any jailor shall fail herein, it shall be lawful for the court of his county or corporation to abate such portion of the fees allowed by law for the maintenance of any such runaway, as to them may seem pro per. Act of January 27, 1829, Ses. Acts 1828-9, c. 21, 3; Sup. R. C. c. 184, p. 243. Whensoever a runaway slave shall be committed according to law, to the jail of any county or corporation within this commonwealth, the keeper thereof shall forthwith cause an advertisement, with a description of the runaway's person and wearing apparel, to be set up at the door of the courthouse of his county or corporation, and if the owner claim not within one month thereafter, the said keeper shall cause a like advertisement to be published, for six weeks, in some public newspaper published in the city of Richmond, as also in some public newspaper most convenient to the jail ; the expense whereof shall be paid by the owner of such slave, or out of the proceeds of sale, if such slave be sold. $ 1.-If the owner claim not said runaway slave within four months from the expiration of the advertisement herein directed to be published in some public newspaper, it shall be the duty of the keeper of the jail to make report thereof to the court of his county or corporation, and the court shall, upon being satisfied that advertisement has been made according to law, order the said slave to be sold at the succeeding court; and the sheriff or other collector of the revenue shall accordingly sell the said slave after having duly advertised the time and place of sale, and return a certificate of such sale to the clerk of the court of his county or corporation, and account for and pay the proceeds thereof in the manner and under the penalties now prescribed by law: and if the said jailor shall fail to perform the duties herein required of him, he shall receive no fees or other compensation for committing, releasing, keeping or clothing such runaway slave. $ 2.-The keeper of the jail in which a runaway slave may be confined, shall in no manner be liable to the person who shall have taken up such runaway, for any other
(1) The sheriff, as gaoler, is bound to fur render necessary. Dabney v. Taliaferro, 4 nish'a runaway committed to the gaol, with Rand. 256. See act Feb'ý 12, 1823, c. 145, such supplies as the season of the year may $ 13, Sup. R. C. p. 206.
Act of February 9, 1819–January 1, 1820. R. C. ch. 241. reward than that prescribed by law, unless, when such keeper shall surrender the said slave, he shall have notice that such other reward has been advertised : Provided, That before such slave is surrendered, the owner or his agent shall make oath, or solemn affirmation, that no other reward than the law prescribes has been advertised by him for the apprehension of the slave, and that he verily believes that no such reward has been advertised by any other person having authority to bind the owner. $ 3. Act of February 28, 1835, Ses. Acts 1834-5, c. 62, p. 44, 45.] [See post. No. 77.]
75. § 3. If the owner claim not within two months thereafter, the sheriff or sergeant shall publish a like advertisement for three months in some public newspaper published in the city of Richmond, as also in some public newspaper most convenient to the jail, the expense whereof shall be paid by the owner of such slave. lbid. and Feb. 1808, c. 122, ed. 1808; 1817, c. 36.
76. § 4. No such runaway slave shall be delivered to the owner or person claiming him or her, unless he shall have proved before the court of some county or corporation, or a justice of the peace of the county or corporation in which such runaway is confined, by his own or another's oath, that he had lost such an one as was described in the advertisement, and that the runaway, when shewn to him, is the same that he had lost; shall have given, before the said court, or justice, security to indemnify the sheriff or sergeant; and shall, moreover, produce the clerk's or justice's certificate of such proof made and security given; and shall pay the expenses incurred in the apprehension and securing of the said runaway. Nov. 1753, c. 7, § 19, 6 Stat. Larg. 365; Altered from 1792. [See post. No. 88.]
77. $5. If the owner claim not within twelve months, the sheriff or sergeant shall advertise for one month, in some public newspaper, the time and place of selling the said runaway, and shall sell the said runaway, if a slave, and pay the proceeds of the sale, deducting the legal expenses of apprehending and securing the said runaway, together with five per centum commissions on the amount of the said proceeds, to the public treasurer, for the use of the owner proving his property at any future time, or, otherwise for the use of the Literary fund; but the court of any county or corporation may, at any time, order a person who had been apprehended as a runaway, to be discharged, on being satisfied that he or she is not a runaway. From 1792 and 1808. [The sheriff or sergeant of any county or corporation within this commonwealth, shall not hereafter make sale of any runaway slave confined in jail agreeably to law, except upon an order of the court of such county or corporation first had and obtained, expressly directing such sale; in which event the proceeds shall be accounted for and paid by such sheriff or sergeant into the public treasury at the time at which the public revenue is payable; and for failing to do so, he shall be liable to the like penalties, and recoverable in the mode prescribed by law for a failure by such sheriff or sergeant to pay the public revenue. Feb. 5, 1822, c. 22, $1. It shall, likewise, be the duty of such sheriff or sergeant to return to the clerk of the court ordering such sale a certificate, stating the amount produced thereby; and for a failure to do so, the said sheriff or sergeant shall forfeit the sum of five hundred dollars, to be recovered by the auditor of public accounts, on motion in the general court, upon ten days notice thereof; and it shall be the duty of the clerk of the court making such order, forthwith to transmit to the auditor of public accounts a copy thereof, as well as the certificate which shall have been returned to him by the sheriff or sergeant. For every such copy the clerk transmitting the same shall be entitled to receive the sum of two dollars, to be paid out of the proceeds of the sale of such runaway slave; and, for failing to transmit such copy, the said clerk shall forfeit the sum of one hundred dollars, to be recovered on mo