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Miller v. Dwilling, September 26, 1826

From Pennsylvania State Reports, Sergeant and Rawle, Vol. 14, "Reports of Cases Ajudged in the Supreme Court of Pennsylvania," pp 442-446.

Landmark Court Decision Regarding Children of People Enslaved for 28 Years

Pennsylvania's 1780 "Act for the Gradual Abolition of Slavery" provided for the emancipation, at age 28, of all children born after March 1, 1780 to enslaved mothers. But vague language in the law allowed unscrupulous slaveholders in Pennsylvania to evade provisions of the law guaranteeing freedom to the children of mothers registered as slaves to age 28. By continuing to register children of "term slave" mothers, or those mothers born after March 1, 1780, as slaves to age 28 themselves, some slaveholders were maintaining a system of perpetual enslavement, in contrast to the spirit of the 1780 law, which was to eliminate slavery from Pennsylvania.

These registration abuses continued, unchallenged in court, until 1824, decades into the 19th century. It was not until September 1826, forty-six years after the passage of the gradual abolition law, that the question came before the Pennsylvania Supreme Court, which ruled that the children of term slaves could not themselves be registered as term slaves.

[Pittsburg, September 26,1826.]

MILLER against DWILLING.

IN ERROR.

The child of a servant until the age of twenty-eight years, cannot be held to servitude for the same period, and on the same conditions as its mother, who was the daughter of a registered slave.

Error to Washington county.

This action, of Homine replegiando, in which Alfred Dwilling, the defendant in error, was plaintiff, and John Miller, the plaintiff in error, defendant, was entered in the Court of Common Pleas of Washington county, of November Term, 1824, to try the right of the defendant to hold the plaintiff as his servant, until he should attain the age of twenty-eight years.

On the trial, the President of the court, gave, among others, the following instructions to the jury, to which the counsel of the defendant below excepted:

"The principal question, then, that is presented to us in this cause is, whether the child of a servant until twenty-eight years, can be held for the same period, and on the same conditions, as the mother? The children of those born during the term that their mothers, respectively, were lawfully held as servants, until they should arrive at the age of twenty-eight years, under the provisions of the Abolition Act of 1780, on account of their mothers having béen slaves for life; in conformity to the existing laws of Pennsylvania at the passage of that act, were born free. The defendant, therefore, has no title to the servitude of the plaintiff, until he shall attain the age of twenty-eight years."

Kennedy, for the plaintiff in error. Had it not been for the passage of the act of the first of March, 1780, 1 Purd. Dig. 478, the issue of a slave, would have been slaves ad infinitum. The object of the law was gradually to abolish slavery for life, but not to abolish servitude until the age of 28 years. This servitude was intended as a compensation to the master, who would be at the expense of supporting the child during infancy, and would lose a portion of the services of the mother during the time the child was very young. He cited, Stiles v. Nelly, 10 Serg. & Rawle, 366.

Baldwin, for the defendant in error. The act of the first of March, 1780, is loosely drawn, but enough appears to show the intent of the legislature to have been, to put an end to slavery absolute or qualified, except in relation to those who were then slaves, and their immediate issue. It has been decided, that the child of a female runaway slave from Maryland, begotten and born in Pennsylvania, is free, and yet that issue would have been a slave, if the act of 1780 had not passed. According to the opposite argument, servitude for life has been commuted to servitude for twenty-eight years, which is qualified, temporary slavery. But the act of 1780, sect. 10, expressly confines slavery to registered slaves, and declares that all others are free; and Atlee, J., in The Commonwealth v. Betsy, 1 Dall. 474, lays it down, that servitude for twenty-eight years is limited to the issue of registered slaves.

Suppose a female slave were brought here from a neighbouring state and kept for more than six months; she becomes free; but if the doctrine contended for on the opposite side be correct, her issue would be servants until twenty-eight, because that issue would have been slaves, but for the act of 1780. This would scarcely be pretended, and is directly contradicted by authority. Again, it has never been contended that the child of an unregistered slave was a servant till twenty-eight, yet the issue of such slave would be a slave if the act of 1780, had never been passed. The servitude created by this law, is declared to be of the same nature as that of one bound by indenture for four years, and does not go beyond the immediate issue of a registered slave. Neither in the act of 1780 nor in that of 1788, is there any mention of the grandchildren of slaves. If hereditary servitude till the age of twenty-eight be preserved, slavery is not abolished, but remains in a qualified form for ever. The Commonwealth v. Holloway, 2.Serg. & Rawle, 305. Wilson v. Belinda, 3 Serg. & Rawle.397.

The opinion of the court was delivered by
Tilghman, C. J. This was an action of Homine replegiando, and the single question is, whether the child of a servant until the age of twenty-eight years, can be held for the same period, and 'on the same conditions as its mother, who was the daughter of a registered slave. It is a matter of importance, and has been very well argued. The case depends on the act for the gradual abolition of slavery, passed the 1st of March, 1780, and an act to explain and amend the same, passed the 29th of March, 1788. If the argument in favour of servitude be correct, the legislature of Pennsylvania, though it abolished slavery for life, established a kind of slavery, a servitude until the age of twenty-eight years, which may continue from generation to generation to the end of the world. This would be so contrary to the general spirit of the act of assembly, and of the time when it was passed, that it requires clear expressions to prove it. I will take a view of the act of 1780, several clauses of which must be considered together, as they throw light on each other.

By the third section, all persons, as well negroes and mulattoes as others, born thereafter, were to be deemed and considered not as servants for life, or slaves; and all servitude for life, or slavery of children in consequence of the slavery of their mothers, in the case of all children born within this state, after the passing of that act, was for ever abolished.

The fourth section contains a provision, that every negro and mulatto child, born within this state after the passing of this act as aforesaid (who would, in case this act had not been made, have been born a servant for years, or life, or a slave,) shall be deemed to be, and shall be, by virtue of this act, the servant of such person, or his or her assigns, who would in such case have been entitled to the service of such child, until such child shall attain unto the age of twenty-eight years, in the same manner, and on the samé conditions whereon servants bound by indenture for four years are, or may be retained or holden;" but, in case the person to whom the service of any such child shall belong, shall abandon his or her claim to the same, the overseers of the poor shall, by indenture, bind the said child out as an apprentice, for a time not exceeding the age of twenty-eight years.

By the fifth section, every person who is, or shall be, the owner of any negro or mulatto slave or servant for life, or till the age of thirty-one years, now within this state, or his lawful attorney, shall, on or before the 1st day of November next, cause the said slave or servant to be registered in the manner therein prescribed, otherwise the said slave or servant, after the said first day of November, is not to be deemed a slave or servant for life, or till thirty-one years of age.

By the tenth section, “no man or woman, of any nation or colour, except the negroes and mulattoes, who shall be registered as aforesaid, shall at any time hereafter be deemed, adjudged, or holden within the territories of this Commonwealth, as slaves or servants for life, but as free men and free women, except the domestic slaves attending upon members of congress, foreign ministers and consuls,” &c.&c.

These are the points of the law most material to the present question, from which several principles may be deduced.

1st. That the legislature, anxious as it was to abolish slavery, thought it unjust to violate the right which every owner of a slave had to his service; and therefore every person who at the time of passing the act was a slave, was to remain a slave, unless his owner omitted to register him, on or before the 1st day of November next ensuing.

2d. That it was not supposed there could be a complete right of property in a person not in existence, and therefore as to the children of persons born after the passing of the act, there was no injustice in making such dispositions as should be judged expedient.

3d. That children born after the passing of the act were, (by the tenth section,) to be deemed free, because it is there declared, that all persons except the negroes and mulattoes, who are registered as aforesaid, shall be deemed free, and none were ordered before to be registered, but those who were living, and slaves or servants for life, or till the age of thirty-one years, at the time of the passing of this act.

4th. That the children of those who were slaves or servants for life at the time of the passing of the act, born after the passing of the act, should be servants till the age of twenty-eight years, in the manner, and on the conditions, whereon servants bound by indenture for four years might be retained or holden.

Now, from these different provisions, I think it follows, that it was not intended to impose a servitude till the age of twenty-eight years, on any except the child of a person who was a slave at the passing of the law. Such child was born free, subject to the said temporary servitude; and its issue could not be held to any servitude, unless it can be shown, (which has not been contended for,) that the issue of servants bound by indenture for four years were subject to servitude; for both were to be held in the same manner, and on the same conditions.

But the counsel for the plaintiff in error relies on that part of the fourth section, by which it is provided that every negro and mulatto child born after the passing of the act, who would, in case the act had not been made, have been a servant for life or slave, was to be a servant till the age of twenty-eight years. To construe these words in their greatest extent, would lead to an extreme, which is confessed to be beyond the intent of the law. It was granted, that the child of a servant till the age of twenty-eight years, born after the mother's time of servitude expired, would not be subject to any servitude, and yet such child would have been a slave, if the act had not been made.

So the child of a slave, who had absconded from another state, begotten and born in Pennsylvania, would be subject to servitude till the age of twenty-eight, contrary to the decision of this court in the case of The Commonwealth v. Halloway, 2 Serg. & Rawle, 305.

So, if the owner abandoned the child, over which he had a right of service until the age of twenty-eight years, and such child was bound out by the overseers of the poor, and had issue, such issue would be liable to a servitude to the former owner of its parent, till the age of twenty-eight years.

Other cases might be put, of the same nature, in which no one has ever conceived that a child was liable to servitude till the age of twenty-eight, although it would have been a slave, if the act of 1780 had not passed.

It is clear, therefore, that the general expressions, "who would, in case this act had not been made, have been a servant for life, or slave,” must be restrained and modified in such a manner as to answer the intent of the act, as it appears from an examination and comparison of its different parts. It may be remarked, besides, that the construction insisted on by the plaintiff in error, would in future times be attended with insuperable difficulty. If the operation of the law is confined to the children of persons who were slaves on the 1st of March, 1780, it will be easy to know whether such children would been slaves, if the law had not been made. If the parent remained a slave when the child was born, it is certain that the child would have been a slave, if the law had not been made. But if the parent had been manumitted before the birth of the.child, then the child would not have been a slave, although the law had not been made. But, in the case of a child to be born one hundred years hence, who can tell whether that child would have been a slave, if the act of 1780 had not been made? It would be impossible to ascertain that, because it would be impossible to know, whether, if slavery had not been abolished, one of the ancestors of such child might not have been manumitted, and then it would not have been a slave.

It was supposed, in the argument of this cause, that, inasmuch as the owner of a servant till the age of twenty-eight, would be subject to some loss of service of the parent, and great expense for the maintenance of the child, (in case such servant should have a child during its time of servitude,) it was the intent of the law, to compensate the owner, by giving him the service of the child till the age of twenty-eight. But I do not feel the force of this argument; because the father of the child is bound to support it, if to be found, and able, but, if not, it may be given up to the overseers of the poor, who must provide for it; and for that purpose have authority to bind it out.

I am aware that different constructions have been put upon the act of 1780, by gentlemen respectable for their learning. Some have held the opinion to which I incline; others the contrary. Neither will I undertake to say, that the subject is free from difficulties, the act not being drawn with such clearness as could be wished. But I think the meaning which I give.to it is most agreeable to the general spirit, and well justified by the words of the law -- that is to say, that no child can be held to servitude till the age of twenty-eight years, but one whose mother was a servant for life, or a slave at the time of its birth.

The judgment of the Court of Common Pleas is to be affirmed.

Judgment affirmed.

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