
    The Commonwealth ex rel. Johnson, a Negro, against Holloway.
    Saturday, January 4.
    A runaway slave from another state who is charged with fornication and bastardy in this Commonwealth, cannot be delivered over to his master, unless security be first given for the maintenance of the child.
    The constitution of the ’United States does not exempt runaway slaves from the penal laws of any state in which they may happen to be.
    
      HABEAS CORPUS.
    
    
      David Johnson, at whose instance the habeas corpus in this case was issued, was in custody of Holloway, keeper of the prison of Philadelphia, on two commitments by Judge Badger: — first as the runaway slave of Mr. Levin Frazier of Dorchester county, in the state Of Maryland; second on a charge of fornication and bastardy. On a hearing it appeared in evidence that he was the slave of Mr. Frazier, who had sent on an agent to receive him.
    Ewing, for the relator,
    contended that the master could not take away a slave charged here with fornication and bastardy : and it had been so decided by Judge Rush, in the Quarter Sessions, in November 1816, in the case of The Commonwealth v. Moses Campton alias Hawk: and in another case, at Nisi Prius, before the Chief Justice, in 1814.
    .S’. Levy, for the master,
    contended that a charge of fornication and bastardy was not sufficient ground to prevent the delivery of the slave to his owner. The object of a prosecution for fornication and bastardy is the indemnity of the public; but a slave, having no property, can pay nothing. The Constitution of the United States is peremptory that no laws or regulations of individual states shall annul the right of the owner to the labour of sefvice óf his slave who escapes, art. iv. § 2. I grant that a slave may be detained and punished for felony, but not for inferior offences.
    
      Reply.
    
    We do not dispute the fact of the relator being a slave ; but if the master can take away the slave, the pub-lie must support the children. Fornication has always been considered by our laws as a crime $ and was formerly punished with whipping, unless the fine was paid. There is no distinction in favour of the slave between larceny and inferior offences. In larceny one part of the sentence is an award of restitution. The Constitution of the United States only relates to laws of the several states on the subject of slavery.
   Tilghman C. J.

From the evidence which has been given, we have no doubt of David Johnson’s being the slave of Mr. Frazier, and there would be no objection to delivering him to his agent, who attends here for the purpose of receiving 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 a fine Of 10 pounds, at the elec- . tion 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 service of his slave ; but it is an inconvenience to which this kind of property is unavoidably subject. The child must be maintained j 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.

But it is objected, that by the Constitution of the United States, (art. iv. § 2.) the slave is to be delivered up to his master. The constitution provides that “ no person held to “ service or labour in one state, under the laws thereof, es~ “ caping into another, shall in consequence of any law or “ regulation therein, be discharged from such service or “ labour, but shall be delivered up, on claim of the party, to " whom such service or labour may be due.” This provision was intended to prevent any state from giving freedom by its laws to slaves who had run away from another state* But it is not to be construed so as to exempt slaves from the penal laws ot any state m which they may happen to be* •j’bis would be to turn them loose on society like wild beasts; and was not at all the object of the constitution. Indeed, the counsel ior Mr. Frazier does not contend that the slave is not subject to punishment for felony. But on what law does he found a distinction between felonies and crimes less than felony? These runaway slaves are often guilty of riots, violent assaults and batteries, and other offences, which, though not felonious, are dangerous to the peace of the commonwealth. It is necessary that they should be restrained by the fear of punishment; arid since neither the Constitution of the United States, nor any law of this state, exempts them from punishment in any criminal case, we are bound to consider them as subject to prosecution in all criminal cases. It is my opinion, therefore, that the prisoner should be remanded to answer the charge of fornication and bastardy.

Yeates J. delivered an opinion concurring with the above.

Gibson J.

agreed that the slave should be subject to prosecution for the crime of fornication and bastardy; and that, this Court cannot withdraw him from the prosecution by delivering him to his .master.

Prisoner remanded.  