Article 1, Section 9, Clause 1

Document 2

Pirate v. Dalby

The Chief Justice delivered the following sentiments, in the course of an elaborate charge to the jury:

McKean, Chief Justice.--The issue is, whether the plaintiff is a freeman or a slave. If the jury think, from the evidence, that the plaintiff's mother was a slave at the time of his birth, according to the laws of Virginia, where he was born, we will point out the legal consequence that flows from the establishment of this fact.

Slavery is of a very ancient origin. By the sacred books of Leviticus and Deuteronomy, it appears to have existed in the first ages of the world; and we know it was established among the Greeks, the Romans, and the Germans. In England, there was formerly a species of slavery, distinct from that which was termed villenage. Swinb. p. 84, 6th edit., is the only authority I remember on this point, though I have before had occasion to look into it with attention. But from this distinction has arisen the rule, that the issue follows the condition of the father; and its consequence, that the bastard is always free; because, in contemplation of law, his father is altogether unknown, and that, therefore, his slavery shall not be presumed, must be confined implicitly to the case of villeins. It would, perhaps, be difficult to account for this singular deviation in the law of England, from the law of every other country upon the same subject. But it is enough for the present occasion, to know, that as villenage never existed in America, no part of the doctrine founded upon that condition can be applicable here. The contrary practice has, indeed, been universal, in America; and our practice is so strongly authorized by the civil law, from which this sort of domestic slavery is derived, and is, in itself, so consistent with the precepts of nature, that we must now consider it as the law of the land.

There is a case in 2 Salk. 666 (Smith v. Browne), which has not been mentioned at the bar, though it bears considerable relation to the present controversy. It was an action of indebitatus assumpsit, for a negro sold; and it was said by Holt, Chief Justice, that a negro, by entering England, becomes free; but that a sale in Virginia, if properly laid, will support the action. Hence, we perceive, how solicitous the courts of that kingdom have been, on the one hand, to discountenance slavery in England; but, on the other hand, to do full justice to the sale, which, by the lex loci, was lawful in Virginia, where it was made.

It only remains to observe, that property in a negro may be obtained by a bonâ fide purchase, without deed.

Verdict for the defendant.

The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 1, Document 2
http://press-pubs.uchicago.edu/founders/documents/a1_9_1s2.html
The University of Chicago Press

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