been substituted by this new indenture, for the horrors of slavery, to which this woman and her infant would otherwise be legally subjected in Maryland.

The objection therefore against the validity of this indenture, that at the time Susan executed it she was a married woman, is repelled by the fact that this intermarriage was unlawful. As a slave she was incapable of entering into a contract of marriage without the master's consent. Such are the deplorable effects of slavery, from which Susan has fortunately been manumitted. A slave, by running from her master in a neighbouring state, cannot derogate from the rights of her master, nor obtain additional rights to herself incompatible with those of her master.

But I go much further. We have adopted the common law of England so far as it is applicable to our local situa-tion and circumstances, but no further. Slavery is unknown in England, and therefore arguments deduced from their law as to slaves, can afford no useful information. The usages and customs which have obtained amongst ourselves are well known to have influenced the decisions of our courts of justice against the known law of England. This appears. clearly from Davy et uxor's Lessee v. Turner, and Lloyd's Lessee v. Taylor, 1 Dall. 11. 17. Now we well know that minors, husbands and wives coming from Germany, Holland and Ireland, have often bound themselves as servants for limited periods, in consideration of their passages from Europe, and such indentures have always been deemed valid. The same remark may be made of contracts entered into by people of colour standing in the relation of husband and wife, and of minors, where there has been a fair and honest consideration paid, and no undue advantage taken of their situation and ignorance. That this contract was fair in all its parts, advantageous to both husband and wife, who will not be torn from each other, and to their child also, is unquestionable. That Clements should be subjected to the loss of 200 dollars paid to William Maxwell for the manumission of the woman, is against all equity and good conscience, I cannot possibly doubt. I am therefore clearly of opinion, that Susan Stephens be remanded to the custody of her master.

1814. COMMON

WEALTH

v.

CLEMENTS.

BRACKENRIDGE J. I have read an account of a case, real or fictitious, I will not say which, decided in some country under the civil law, which has been generally received as a · ground of the law of nations; and this question which respects the rights of a slave, cannot but be considered as having some relation to the law of nations, or at least authorities of general law may be read in the case. The case to which *I refer, and have in my mind, was said to be as follows:

A person passing by a pool, missed a foot and slipt in. He was over his depth, and the bank was steep. A shepherd observing him from a height, hastened to his assistance, and entangling his crook in the garments of the drowning man, drew him out. But in attempting to fix his crook in the first instance, he had hurt the eye of the stranger in the pool, and which afterwards occasioned the loss of it. The stranger so rescued, brought his suit and claimed damages; for it is a principle of our law, derived from the civil, Southcote's case, Coke, Coggs v. Barnard, Ld. Raymond, and Jones on Bailments, that even voluntary service and without reward, if unskilfully performed, may partake of the nature of injury, and require damages.

The Court decided, that the plaintiff should have his election to go back to the same pool, and put himself in the same place, and after having struggled a while and being half drowned, if he could get out of himself and without help, he might come back and prosecute his action; this he declined, and was nonsuited. I would propose to give the applicant in this case the like election, which is to annul the evidence of her manumission, and procure her indenture to be taken up, and to put herself in her master's hands, as at the time when she was taken out of his possession, if this can be done. If she cannot do this, or procure it to be done, her complaint under this habeas corpus must be dismissed.

Prisoner remanded.

OF PENNSYLVANIA.

The Commonwealth ex rel. negro

TH

HOLLOWAY.

Philadelphia,
Tuesday,
January 4.

The domestic

slave of a member

of congress from South Carolina, who during the

HIS was a habeas corpus to the jailer of Philadelphia county, to bring up the body of negro Lewis. The return to the writ stated, that he was held by virtue of a commitment by an alderman dated the 29th of December recess of congress attends the family 1813, which commitment was founded upon an oath, that of his master in Lewis was the slave of Langdon Cheves esquire of South this state, where Carolina, and had absconded from the service of his master. temporary resi

it had taken a

dence, does not acquire freedom by being retained

Upon the hearing it was agreed, "that Langdon Cheves in the state longer ་ was a native citizen and resident of South Carolina, and than six months. "had never resided any where else but as a sojourner; that "he was a member of congress, from that state, and had "sojourned in Pennsylvania for the purpose of more con"veniently discharging his duties as a member of congress, "but without any intention to become domiciled there; that 66 negro Lewis, who was a domestic servant, had always "been his slave while residing in Pennsylvania, and ab"sconded from his service in Germantown about the 1st of "December 1813; that sometime in March 1813, after con"gress rose, Mr. Cheves came to Pennsylvania bringing "Lewis with him; that he rented a house in Germantown, "and lived there with his family till some time in Decem"ber 1813, when he went to Washington with his family; “and that Lewis lived with him more than six months in "Pennsylvania, but absconded before Mr. Cheves left the "state for Washington." Upon these facts,

any

Rawle and Lewis for the negro, contended that he was free, by virtue of the tenth section of the act of 1st March of no man or woman nation 1780, which enacts that " "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." 1 Smith's Laws 495. The exception contained in that section, namely, of "the domestic "slaves attending upon delegates in congress from the other "American states, foreign ministers and consuls, and per

1814.

WEALTH

V.

"sons passing through or sojourning in this state &c." they COMMON argued did not embrace the present case, because it was taken out of the exception, by the proviso that "such do"mestic slaves be not (except in the case of members of 66 congress, foreign ministers and consuls) retained in this "state longer than six months." Negro Lewis they said was to be considered as the slave of a sojourner for more than six months.

HOLLOWAY.

1. The basis of the act of 1780, is the right of every person to freedom, therefore the exception must be construed strictly. Under the old confederation, members of congress had a diplomatic character. They were in the nature of foreign ministers, with whom they are coupled in the act. The intent of the act was to give to the members of that congress while sitting, and representing their respective states, the privilege of keeping their own servants, and of bringing with them the rights which were derived from their own law. But when the present federal constitution was adopted, the old one was done away, and there ceased to be any delegates in congress. The act of assembly is there--. fore not applicable to the present constitution.

2. The privilege given by the law is in consideration of, and is to be limited by, the public functions of the members of congress. It is confined to an actual attendance in congress, with an allowance of reasonable time eundo, morando, et redeundo; and does not extend to a residence during the recess of congress. The words are not members of, but delegates in congress, and the narrowest construction should be made.

3. Still less can it be understood to extend to, and to except the case of a family residing here during the recess, for their personal convenience, when the congress meet in another state. The spirit of the law is as averse to such a construction as the letter. Pennsylvania voluntarily imparted the privilege to members of congress, because congress was then held in Pennsylvania, and it was necessary of course that the delegates should reside there. The act contemplates the case of a congress in Pennsylvania only; it speaks of slaves attending upon delegates in congress. To enlarge the exception, is to violate the intention of the legislature. Residence in this state not being necessary, while congress

sits at Washington, the reason of the exception fails, and the exception itself must therefore fail.

Sergeant contra. The intent and the true policy of this state in the act of 1780, was to pay respect to the other members of the confederation in the person of their representatives. It was a policy essentially necessary to the peaceful intercourse of the states, and almost to their equality. There is therefore no propriety in giving a narrow construction to what so evidently flowed from a liberal spirit.

1. The change of the confederation for the present con-stitution, makes no change in the law. So far as the object, and intention of the law are concerned, a member of the old congress and of the present congress are the same. It is still a confederated government. The same respect is due by this state, to the southern states and their representatives. The exception was not made in consequence of any temporary interest which this state had in the confederation, or of any particular virtue in the delegates to that body; but in consequence of its general interest in the success of the union, and of the general necessity of granting this accommodation to representatives in the common legislature. This state itself has declared that the law extends to the present congress. The constitution of the United States was adopted by Pennsylvania on the 12th of December 1787. On the 29th of March 1788, a law was passed, expressly recognizing the last exception to the tenth section of the act of 1780, as being then in force. 2 Smith's Laws 443.

2. The privilege of the member of congress is not limited to his attendance upon that body, or to his going and returning. The language is general, "slaves attending upon "delegates in congress." The verbal criticism upon this phrase, has no weight. In the last exception it is exchanged for "members of congress," and both are thus treated as convertible expressions. It is of great moment at times, for the dispatch of business in the vacation, for the more convenient discharge of other business, and in consequence of the state of the country, that members of congress should not return home after a session. The law may reasonably be considered as embracing such a case. In the present instance, there was a special session in May 1813. The war

1814.

COMMONWEALTH v.

HOLLOWAY.