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Are Children of a Fugitive Slave born in a Free State Free?
We have heard the above query since the agitation of the Fugitive Slave question caused by the new law on the subject. Reasoning from what we conceive correct premises, we have supposed all such children to be free. The Cin. Gazette has the following article which is the first we have noticed in the paper on this subject. It shows satisfactorily that the Courts, both North and South regard all such children as free. The Gazette says:
In the present excited state of the public mind, it it becomes important to know how far the laws for the reclamation of fugitive effect colored children born in the free States. By including such children in the estimate of fugitive slaves, the number is very much increased. We think it very clear that these children are neither within the words of the spirit of the constitution, or the laws made in the pursuance thereof.
The Constitution declares that - "No person held to service or labor in one State, according the the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service of labor, but shall be delivered up on claim of the party to whom such service or labor is due."
The acts of Congress, passed to give effect to the above provision of the Constitution give a summary remedy to persons to whom "service or labor" is due, in cases where those owing such service or labor, "in any of the United States or either of the Territories," under "the laws thereof, shall escape into any other of the said States or Territory." The persons to be reclaimed under the laws are described to them substantially in the words of the Constitution, and must on that account as well as on the general principles, be held to apply to the persons therein described, and to no other persons whatever. To bring any person claimed as a fugitive, within the provisions of the acts of Congress, it must be shown that he had been held to service or labor in another jurisdiction, State or Territory, and had escaped from that jurisdiction into the State or Territory where he is found and claimed. Now it is perfectly clear that no person born in a free State who has never been in a slave State, can have been held to labor in a Slave State, or leave escaped into any other State or Territory, and no such person can, therefore, be taken from any jurisdiction within which he is found, as a fugitive service, under the Constitution and laws of the United States. We are aware that it is held in the Slave States that children born of a slave mother follow the condition of the mother, but this assumption does not establish a right to pursue and reclaim, as a person owing service in a state, according to its laws; and us having escaped from such service, any one who has never been in the State, and consequently could no have escaped from it! It is clear to our mind, and we are confirmed in this conviction by the decision of the Supreme Court of Pennsylvania, and the decision of the Court of Appeals in Virginia, that the child even of a slave mother born in a free State is free, and must be adjudged free by every State in the Union.
The following, which we copy from the Friend, a Pennsylvania paper, sustains the vies also expressed in every particular:
The Constitution only provides for the recapture of those slaves, who have themselves escaped from one State into another. An individual to be within its provisions must have been actually held to labor or service in one States under the laws thereof, and must have fled from such service. In the case of a child born in a free State neither of these facts can exist. It has neither been subjected to Slavery, nor has it escaped
As long ago as 1816, this doctrine was established by the unanimous opinion of the Supreme Court of the Pennsylvania, that birth in that state gave freedom to the child of the slave who had absconded. And this interpretation of the Constitution has been acquiesced in Courts in the Slave States. In 1828 the Court of Appeals in Virginia were unanimously of the opinion that they were bound to give effect to the law of freedom in Pennsylvania, though it was objected that it might confiscate the property of a citizen of Virginia. In the case to which we refer, the Court says: "Susanna, the plaintiff was born under its operation in Pennsylvania; though born of a slave mother she was free; and in this aspect of the case the Court is not called upon to execute the law of Pennsylvania, but the law of Virginia, which does not now and did not then permit a person free in Pennsylvania and to be held in Slavery here."