
    Pennsylvania v. Aberilla Blackmore.
    
      See act of Assembly, 13th April, 1782.
   ON application to me, a writ of habeas corpus was directed to Aberilla Blackmore, returnable before me, for Cassandra and Lydia, two Negro women, whom she held as slaves. At the return of the writ, the claim appeared to turn on this question, whether Samuel Blackmore, late husband of Aberilla, was an inhabitant of the county of Westmoreland, on 23d September, 1780. This being a question involving facts asserted and denied, it was agreed, that this should be put in the form of an issue, and be tried in the court of Common Pleas. It was accordingly tried this term; and it was agreed, that the jury should return a special verdict, to be drawn up by me. The object of the counsel for Aberilla Blackmore was, to have the proceedings removed into the Supreme court, for the opinion of that court on the facts found. Afterwards I proposed, and it was a reed, that, instead of a special verdict, there should be a special return to the habeas corpus, stating all the facts found by the verdict; and that the cause should go up to the Supreme court, on a certiorari directed to me, in this shape, of the writ and return only.

The return was as follows:

“In obedience to the within writ, I have here Cassandra and Lydia, as within required; and as the cause of their being taken and detained, I certify and return;—That the said Cassandra and Lydia, Negro women, were slaves to my deceased husband, Samuel Blackmore, in the state of Maryland, where he lived, and they with him, as part of his family, before and in the month of March, in the year of our Lord one thousand seven hundred and eighty. That in March, 1780, he came into the then county of Westmoreland, in the state of Pennsylvania, to purchase land; and on the 24th day of that month, purchased a trail of land; then in the county of Westmoreland, but now in the county of Washington, and state of Pennsylvania, for 22,000l. continental money; and gave his bond for this money, which he afterwards paid. That returning to Maryland, where his family still remained, he told one of his neighbours, who was then about to remove, and, in April, 1780, did remove thence into the county of Westmoreland aforesaid, that he should have a certain part of this land; bade him put a fall crop in, if he did not get there in time himself; gave him apple-trees to plant; and said he would be out there himself in September. That having sold his land in Maryland, he, about the middle of December, and not before, arrived with his family, at the land which he had bought, then in Westmoreland, now in Washington county, in Pennsylvania. Lydia was then with him, and Cassandra had been sent up about two weeks before, with two of his sons. That from that time, till his death, he continued to reside on this land, with his family, keeping Lydia and Cassandra part of it as slaves. That an act to redress certain grievances within the counties of Westmoreland and Washington, passed 13th April, 1782, enabling certain inhabitants of those counties to register their slaves, he registered Cassandra and Lydia, with the clerk of the peace of Washington, on the 19th day of December, in the year of our Lord, one thousand seven hundred and eighty-two, as follows: (to wit)Samuel Blackmore, of township. Cass. a Negroe slave, twenty-two years. Lyddy, a Negroe slave, twenty years.’ By virtue of which they are and were claimed and held as slaves, in the state of Pennsylvania. And this is the cause of their being so kept and detained.

ABERILLA BLACKMORE.”

The proceedings having been removed into the Supreme court, it was agreed, by the counsel on both sides, that the validity of the return should be argued at the next court of Nisi prius, in Washington, and the determination of the claim be made, by the judges then attending.

Accordingly, it was argued before Yeates and Smith, judges of the Supreme court, on 18th May, 1797, at a court of Nisi prius, at Washington.

1 St. L. 838.

2 St. L. 55.

2 St. L. 207.

1 St. L. 839, 840, 841.

Brackenridge, for the sufficiency of the return, read the act for the gradual abolition of slavery; and the act, of 13th April, 1782, to redress certain grievances within the counties of Westmoreland and Washington; and the act confirming an agreement entered into between this state and the state of Virginia; and made two questions.

1. Whether the act of 13th April, 1782, relates to inhabitants within the counties of Westmoreland and Washington, at the date of the act, or on the 23d September, 1780, when the agreement between the two states was closed.

2. Whether Blackmore was an inhabitant of Westmoreland county, on 23d September, 1780.

He contended that, by the purchase of a tract of land, sending up apple-trees, &c. he became an inhabitant.

As to registration, the abolition act is directory only: provided the truth be, that the persons are registered, mere formalities are not regarded. It is a law taking away property, and will be construed liberally in favour of the owner not of the slave. In 1780, this country was considered as Virginia, and its inhabitants as not bound by laws of Pennsylvania.

Ross, against the return. The abolition act provided against any introduction of slaves after the date of the act. All brought in after the act, instantly became free; all born after the act, are declared free at the age of twenty-eight; and the registration of slaves then within the state is secured by the penalty on the owner, of loss of property in any not registered according to the directions of the act.

The two Negroes in question, having been brought into this state after the 1st of March, 1780, are free, because not within the state on 1st March, 1780, nor, if within it, recorded before 1st November, 1780. The act of 13th April, 1782, reciting that “many of the inhabitants of Westmoreland and Washington counties, conceiving themselves under the jurisdiction of Virginia, had no opportunity of entering or registering their slaves, agreeably to the act for the gradual abolition of slavery,” enacts, “that it be lawful for all such inhabitants of the said counties, who were, on the 23d of September, 1780, possessed of Negro or Mulatto slaves, or servants until the age of thirty-one years, to register such slaves or servants, agreeably to the directions of the act aforesaid, for the gradual abolition of slavery, on or before the 1st day of January next; and that the master or masters, owner or owners, of such slaves or servants, shall be entitled to his, her, or their service, as by the said act is directed; and the said slaves or servants shall be entitled to all the benefits and immunities in the said act contained and expressed.”

But this act cannot make those slaves, who were free under the act of March, 1780. And these women, having been brought in, after the 1st March, 1780, were free instantly after their being brought in. If they became free instantly after they were brought in, they remain free; for it is not in the power of any law, to make a free man a slave.

The object of the 5th section of the abolition law was to describe the sex and age of the slave, and the trade and residence of the master, so particularly, that slaves might, at any time, be certainly traced back. For this purpose, the directions of the act must be strictly complied with. But in the registry under which this claim to slavery is supported, there is no township, district, or profession of the master, nor sex of the slave. One of these Negroes is named Cass: This leaves it uncertain whether the person be man or woman, or the name Cassius or Cassandra. Strong indeed must be the leaning against liberty, if without any thing on the record to determine, this court shall say, that it was this woman Cassandra, who was then registered. Liddy is somewhat different. It is not so doubtful of what sex this slave was. But this less degree of doubt arises not, as it ought to do, from the record, but from our knowledge, that there is no name so like Liddy, as Lydia, which is a woman’s name.

As to the law of 1782, it is certain, that the legislature is not more the sovereign than the executive is.—The legislature is the people acting under a limitation, and can enact no law contrary to the constitution. The courts will be vigilant over the laws; for on the pure administration of justice, according to the spirit of the constitution, our liberty and safety depend.

Can the legislature, by a law, declare a free person to be a slave, when the constitution, under whose authority they act, declares all men free, and freedom to be all unalienable right? If they can make one free-man a slave, why not a whole county? It is no answer to this that he was a slave, and, by an omission, became free; nor that he is black. All are alike in the fight of God. If he has reason, he is answerable for his conduct. No legislature has such a power over whitemen; and none, therefore has such power over black.

But it is objected, that it is doubtful, whether these counties were under the jurisdiction of Pennsylvania.—It turned out that they were. This was ascertained before November, 1780. This was one of the grievances to be remedied. But there was no power in the legislature, to give the remedy attempted. As well might they have made a law to introduce, as slaves, after the peace, slaves of Pennsylvanians, absent with their masters in the army. Samuel Blackmore could have been in no uncertainty. He was not here. He was in Maryland, and had no slaves here to register on the 23d September, 1780, or the 1st November, 1780. It was not on such, that the law of 1782 was to operate; but on such as, on the 23d September, 1780, were inhabitants of the disputed territory. On the 23d September, 1780, the dispute ceased, and it was no longer doubtful, whether Pennsylvania or Virginia had jurisdiction; but certain, that the laws of Pennsylvania were to govern every man here. The law of 1782 was not then made; Samuel Blackmore was not then here; and, coming in afterwards, he brought in his Negroes under the operation of the law of 1780; by that law, they became free immediately after their arrival here; and being once free, they must so remain.

Having land here does not make an inhabitant. Inhabitants of Europe have land here. Intention does not make fact. Intending to be a resident is not being a resident.

I hope the court will construe these acts liberally in favour of liberty, and strictly against the owner, who does not pursue the injunctions of the law. As the claim of slavery is so contradictory to the principles of reason and nature, I hope the court will go as far as possible, to reconcile them, and say, there shall be no slavery, but where every particular of the law is complied with. If this were the case of white women, the construction would be liberal. It must be so, in the case of black women. There case is worse than that of criminals.—They, confined for a few years, have the prospect of liberty at last. These never. Were an American prisoner in Algiers, claiming the benefit of a law there, which declared free all slaves not specially registered, to be told, that such law was a mere formality, what should we think of that country? Should it be told in Algiers, that we have a constitution, which declares all men free, and a law to register the name and sex of every slave; they would ask, “Why complain of us? If by that law, free men are declared slaves, why do you boast of a constitution?”

2 St. L. 207.

I argue this case without any recompence, but that which every man finds, in the satisfaction of doing a good action. And I am confident, that this court will take hold of the least flaw, to restore these women to the unalienable rights of nature.

Brackenridge, in reply. On principles of nature, there can be no slavery. But we live under an express constitution; and on constitutional principles, there can be no slave, for the constitution declares all men born free; and the question is, Are these of the human species?—Another section protects property: this was a species of property; and the protection of the constitution is claimed for it.

Such construction will be given, as to render the whole consistent ; and the construction will be secundum subjectam materiam. These sections relate only to the parties to the contract. These Negroes were not parties to it ; they were none of the people. If it apply to all men, and a Negro be a man, there is an end of the question. If Negroes be property, this can only be taken away by consent of the owner.

The compact between the states of Pennsylvania and Virginia was in sieri, till 1784; and the act of 1782 was made, not to correct, but to prevent, a grievance. The resolution for accepting the cession was not a law; for the stile of laws is, Be it enacted, &c.

To give perfect relief, the act of 1782 ought to be construed as applying to the inhabitants at the date of the act; because the boundary was not then run, nor the cession complete.

As to residence, he had bought land, with intention to remove, and reside on it; he had sent out an agent, apple-trees, &c. He was no longer an inhabitant of Maryland.

Next day, the judges delivered their opinion, that the Negroes were free. 
      
      
        Washington county was erected 28th March, 1781.
     
      
       This law is not published in Dallas's edition of the state laws.
     
      
       The form of the registration was made part of the return, on the application of Mr. Ross at the argument.
     