Citation Numbers: 32 Ky. 432
Judges: Robertson
Filed Date: 11/12/1834
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
This is an agreed case, in which the only question presented, is the liberty or slavery of the appellants — Winney Barrington, Julian Barrington, and Henry Barrington; who are the children of Dinah Barrington, a woman of colour, who was born in the State of Pennsylvania, in March, ISO.O, but was afterwards brought to Kentucky, where, before she was twenty eight years old, she gave birth, to the appellants.
' This question depends altogether on another question ; that is, whether Dinah, the mother, was a free woman, or a slave, when the appellants were, each of them, born ; or whether, as the circuit judge seems to have thought, she was a slave until she had attained twenty eight years of age.
A statute of Pennsylvania, enacted on the first of March, 1780, for the gradual abolition of slavery withjn that Commonwealth, contains the following provisions, and which are the only legal provisions which can materially affect the question now to be decided.
“ Sec. 111. All persons, as well negroes and mulattoes as others, who shall be born within this state, shall not be deemed and considered 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, from and after the passing of this act, as aforesaid, shall be, and hereby is, utterly taken away, extinguished, and forever abolished.”
“Sec. iv. Provided always, that every negro and mulatto child, born within this state, after the passage of this
Looking either to the letter, or to the evident end and policy, of the statute from which the foregoing provisions have Iwen quoted, we can. have no difficulty in understanding the true import and effect of that enactment. It was intended to be a charter of universal liberty, within flie limits of Pennsylvania, thenceforth and forever— excepting only as to such persons as were then slaves. The great end of the statute — that is, the ultimate extirpation of slavery — could never he accomplished, if persons horn after its enactment, should he deemed to he slaves until they respectively attained the age of twenty eight years. The act was altogether prospective; and the legislature evidently intended that, as soon as all those who were then slaves should become extinct, or tie removed from tiie state, slavery itself should be extinguished in Pennsvlvania. And this obvious intention is perfectly consistent with the most lit
If, however, the language of the third section of the act of 1780, could be so construed as to leave any doubt respecting the true legislative intent, all perplexity would vanish when the next section of the act is examined. That section shews clearly, that the children (of slaves) born after the date of the act, should, in consequence of their forlorn and helpless condition, be retained in a state of pupilage, until they should attain twenty eight years of age, and should, during that period, stand in the same relation to their superiors or masters, as that of indented servants or apprentices.
We cannot doubt, then, that Dinah Barrington was born free, and never was a slave ; and that, as she was never a slave, her children must be free. Had they been born in Pennsylvania, they would certainly have been born free. The fact, that they were born in Kentucky, cannot, prejudice their natural and legal rights'; for partus sequitur ventrem is the law of this state; and we know of no law, human or divine, which stamps slavery, a nativitate, on children, whose mother was a free woman at the time of their birth. The only legal effect resulting from the fact, that the appellants were born in this state, is, that their birth-rights must be dc
The cases of Frank ads. Milam's executors, 1 Bibb, 615, and of Amy vs. Smith, 1 Littell, 326, which have been relied on by the counsel of the appellees, have no application whatever to the point we are now considering. In the first of those cases, the person, who sued for his freedom, was the child of'a mother who was born a slave in Pennsylvania, prior to the year 1780, and was, therefore, a slave when she gave birth to the claimant; and this court decided, that he was a slave because, at the time of his birth, his mother was a slave, and because he was tora in Virginia or Kentucky, where, by law, the child followed the condition of the mother. And, in the last of those cases, 1 Litlell, 326, the party claiming to be free was born in Pennsylvania prior to the year 1780, and was therefore a slave.
It is true, that the court said, in the case of Frank ads. Mila-m's executors, suma, that, “ by the provisions of the original act (that of 1780,) the children of slaves ‘born witbin the state’ (Pennsylvania,) after the passage thereof, were declared free after the age of twenty eight years; and if Sibley’s children (of whom Frank was one) had been born within that state, the right of freedom would have been incipient, to be consummated by the attainxnent of the age specified.” We do not, however, understand the court as meaning, hy the foregoing language, that Frank, had he been born in Pennsylvania since 1780, would have been a slave; but only that he would have been liable to the prescribed service for twenty eight years ; and, at the end of that term, would have been entitled to freedom from such servitude or control, just as an indented servant or apprentice would, at the end of the term for which he had been bound, be entitled to liberation from the government and discipline of his master.
But if the court could have intended to say, in the ease of Frank ads. Milam's executors, that, on the hypo
We are therefore of the opinion, that, upon the facts agreed, the appellants, and each of them, are, and ever have been, absolutely and in all respects, free per.mus of colour ; and that, as such, they are, and have ever been, from their respective births, entitled to alj the juivileges and immunities to which that class of persons are entitled by the laws of this Commonwealth.
Wherefore, the judgment of the circuit court must he reversed, and the cause remanded, with instructions to render a judgment declaring the appellants and each of them to be free.