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New Jersey Slavery and the Law

Gary K. Wolinetz

Reprinted from Gary K. Wolinetz, New Jersey Slavery and the Law
50 Rutgers L. Rev. 2227-2258 (1998)(Permission Requested)(Citations Omitted)

The Declaration of Independence signed by delegates from New Jersey declared it "self evident that all men are created equal." Years later, the 1844 New Jersey Constitution expressly provided that "(a)ll  men are by nature free and independent." Despite these lofty sentiments, the sad record reveals that slavery existed in New Jersey from its very beginnings until the Thirteenth Amendment to the United States Constitution abolished slavery in 1865. In fact, New Jersey was the last Northern state to outlaw slavery. 

Slavery once brought this nation to civil war. Its vestiges are felt to this day. The recent release of the movie Amistad has brought the legal underpinnings of slavery to the public eye once again.

As we confront the legacy of slavery and engage in a dialogue about race relations in our legal system, it is appropriate to address slavery in our own backyard. Specifically, the existence and enforcement of the New Jersey slave codes. . .
 
I. Slavery in the Proprietary Period
II. Slavery in the Colonial Period
III. The Impact of the Revolution
IV. Early Reported Decisions
V. New Jersey Elects Gradual Emancipation
VI. New Jersey's Personal Liberty Laws
VII. Case Law Prior to the 1844 Constitution
VIII. The Impact of the 1844 Constitution
IX. The Legislature's Response to Post
X. New Jersey's Response to Slavery Prior to the Civil War
  Conclusion



I. Slavery in the Proprietary Period 

New Jersey was first colonized in the early and mid-seventeenth century by settlers from Holland and Sweden. It is likely that the Dutch, well known slave traders at the time, introduced slavery to New Jersey. While the majority of slaves in New Jersey were Black, Native Americans were also held in bondage. 

With barely a struggle, the British wrested control of the land comprising New Jersey from the Dutch and Swedes in 1664. Thereafter, the Duke of York, brother of Charles II, created a proprietary regime by conveying (under questionable legal authority) New Jersey to Lord John Berkeley and Sir George Carteret. To encourage immigration, Lord Berkeley and Sir Carteret issued adocument in 1665 entitled "The Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey, to and with all and every the Adventurers and all such as shall settle or plant there." Among a host of rights guaranteed to prospective settlers, this document provided that in addition to a land grant each settler would receive an additional sixty acres for "every weaker servant or slave, male or female, exceeding the age of fourteen years" brought to New Jersey in 1665. The first proprietary law that explicitly governed slavery was enacted in 1675 and subjected any person who transported or knowingly harbored a slave who had left his master without permission to a fine. 

In 1676, three years after Lord Berkeley sold his interest in New Jersey, the proprietorship was divided into East Jersey and West Jersey. East Jersey had far more slaves than West Jersey, which was principally inhabited by Quakers. While both East Jersey and West Jersey enacted laws dealing with Blacks, only East Jersey specifically mentioned the word "slaves" in its legislation. 

In 1682, East Jersey enacted two laws governing slavery. The first law required that "all masters and mistresses having Negro slaves, or others, shall allow them sufficient accommodation of victuals and clothing." The second law sought to prevent slaves from stealing from their masters by making it a crime to "buy, sell, barter, trade or traffic with any negro slave, or Indian slave, or servant, for any rum, brandy, wine or strong drink, or any other goods, wares or commodities, living or dead." Those who purchased goods from a slave, whether they were stolen or not, were subject to a fine. Slaves who violated this law were to be "whipped by the person or persons to whom he tendered such sale." 

Other laws imposed additional restrictions upon slaves. For example, a 1685 West Jersey law provided that any person convicted of selling rum or other strong liquor "either to (a) Negro or Indian" shall be fined. In an early example of legislation aimed at keeping weapons out of the hands of slaves, a 1694 East Jersey law forbade a slave, absent permission from his master or another "white man," from "carry(ing) any gun or pistol or tak(ing) any dog with him or them into the woods, or plantations, upon any pretence whatsoever." 

During this period, slaves were tried in the same courts as freemen. A 1695 East Jersey law changed that, however, by creating special slave courts consisting of three justices of the peace to hear prosecutions against slaves for "felony or murder or, suspicion of felony or murder." Somewhat surprisingly, the law preserved the right to trial by jury in such cases. The same law made it a crime for a slave to steal livestock. Upon conviction (before two justices of the peace and without a jury), the owner of the slave was required to reimburse the damaged party and pay the constable the costs to whip his slave not more than "forty stripes." 



II. Slavery in the Colonial Period

Ultimately, after years of political chaos, the proprietary system collapsed. In 1702, New Jersey became a Royal Colony. In that year, Queen Anne appointed Lord Cornbury as the first governor of a united New Jersey. Among various Instructions, Queen Anne advised Lord Cornbury to take the necessary steps to ensure that proper payment for slaves be made to the Royal African Company, which had been granted a royal monopoly in the slave trade so that the "Province may have a constant and sufficient supply of merchantable negroes at moderate rates, in money or commodities." The Instructions also required Lord Cornbury to provide the Crown with an annual account of the number of Black slaves in the Colony and their purchase price. 

While encouraging the importation of additional slaves into New Jersey, the Instructions also contained several provisions designed to improve the lives of slaves. For example, Queen Anne advised Lord Cornbury to seek the passage of a law banning the mistreatment of slaves and imposing the death penalty for the murder of a slave. Queen Anne also requested that Lord Cornbury encourage "the conversion of negroes and Indians, to the Christian religion." 

Queen Anne's Instructions to Lord Cornbury were consistent with the Crown's goal of increasing the number of slaves in New Jersey and other colonies. As subsequent colonial legislation demonstrated, this goal was often at odds with the colonists' desire to limit the slave trade (either for economic or humanitarian reasons) and to encourage the immigration of White servants who, it was presumed, could better assimilate into society once their period of servitude was over. 

In the early eighteenth century, the Colony enacted a series of laws that were designed to impose strict controls on slaves. For example, a 1704 Act passed by the General Assembly provided that a slave convicted of stealing an item worth five shillings "shall be whipt on the bare back with Forty Stripes . . . and be likewise burnt with a hot Iron on the most visible part of the left Cheek near the Nose, with the letter (T) by the Constable." Any slave convicted of using force or persuasion to have sexual relations with a White woman was subject to castration and then execution. 

Furthermore, children of freed slaves "and their posterity" were forever barred from purchasing or inheriting land in the Colony. Lastly, in a rebuke to those who believed that a slave who adopted Christianity could not be held in bondage, the law prohibited the practice of freeing slaves who had been baptized. 

In 1709, the Lords of Trade sought to repeal the 1704 Act because, while they declared that it contained "Several good and Useful Clauses," they believed that the clause imposing castration "(would) inflict inhumane penalties on Negroes (and was) not fit to be confirmed by Your Majesty." The Act was repealed by the Crown six days later. 

The Colony enacted an expansive slave code in 1713 to replace the 1704 Act. Making an express finding that "Free Negroes are an Idle and slothful People," the 1713 Act required owners to post a bond for any freed slave and to provide the freeman with an annual stipend. This provision was intended to prevent a large population of free Blacks from forming in the Colony and to bar masters from "manumitting their old, decrepit slaves, and thereby throwing the bur(d)en of their support on the state." 

The 1713 Act also resurrected the prohibition in the repealed 1704 Act against freed slaves owning land and prescribed severe criminal penalties against slaves. Prosecutions were brought before a slave tribunal consisting of three justices of the peace and five county freeholders, without the benefit of a grand jury. The Act explicitly provided that slaves were permitted to testify in criminal trials. To encourage the cooperation of slave owners in criminal prosecutions, masters were compensated for each slave executed (thirty pounds for a man and twenty pounds or less for a woman). 

Slaves were also subject to punishment without trial. For example, a slave found five miles from his master's home without written permission could receive up to twenty lashes. The same punishment applied to slaves from other colonies who were apprehended in New Jersey, except that those slaves were also committed to the county jail. 

In 1714, the Colony adopted a law which imposed a duty on slaves brought into the colony from June 1, 1716 through 1723. A master who refused to pay the duty risked having his slave seized and sold at a public auction. Nothing in the law, however, precluded a master from importing a slave from another colony without payment of a duty. 

Thereafter, a 1722 law provided that any slave convicted of carrying a gun for hunting or any other purpose without the permission of his master would receive twenty lashes at "the public whipping post." Pursuant to that law, the master was required to pay the "whipper" a fee for imposing the punishment upon the slave. 

In the mid-eighteenth century, there were approximately 4600 Black slaves in New Jersey. Seeking to discourage unsupervised slave activity and prevent slave insurrections, a 1751 law provided that slaves who met in groups of more than five or were seen outside after 9:00 p.m. without their master's permission were subject to twenty lashes by the constable. The 1751 law also barred the sale of strong liquor to a slave without his master's written consent. A 1760 law imposed a punishment of thirty lashes upon a slave who set an illegal trap. 

Laws enacted in 1767 and 1769 at the behest of a growing anti- slavery movement in New Jersey imposed a duty on each slave imported into the Colony. These laws were designed, at least in part, to achieve several objectives: to prevent the entry of more Black slaves into New Jersey, to encourage additional White settlers to immigrate, and to prevent New Jersey from being used as a dumping ground for slaves ultimately destined for New York or Pennsylvania. The 1769 law expressly provided that masters were compelled to support and maintain their slaves unless a master became insolvent, in which case his slaves would be entitled to the same support as similarly situated White servants. This statute, however, reduced the number of manumissions by requiring that a manumitted slave be supported by his former master. 

Because of the inconvenience associated with trying slaves for murder and other capital offenses (including attempted murder, rape, arson, and mutilation) before three justices of the peace and five county freeholders as required by the 1713 Act, a 1768 law permitted such trials in the regular courts. As with the 1713 Act, however, any slaves convicted under the 1768 law would "suffer death, or such other pains and penalties" as appropriate. Obviously, that left considerable discretion to the trial court to determine the applicable punishment. As previously noted, being burned alive at the stake was a common punishment for a slave convicted of a capital or even a lesser offense. 



III. The Impact of the Revolution

New Jersey did not abolish, or even mention, slavery in its 1776 Constitution. The Revolutionary War, however, was responsible, directly or indirectly, for the freedom of many slaves in New Jersey. Some slaves escaped, while others, despite legislation forbidding the enlistment of slaves in the armed forces, earned their freedom by fighting for the Continental Army or the New Jersey Militia. Some slaves even joined the British Army to take advantage of the proclamation issued in 1775 by Lord Dunmore, Virginia's royal governor, which promised to free any slave who fought for the British. 

Even though the framers made no reference to the subject of slavery in the 1776 Constitution, New Jersey passed several important statutes in the late eighteenth century governing the institution. Those statutes demonstrated a commitment to accomplish four primary goals: (1) bar the importation of new slaves; (2) encourage individual masters to free their slaves; (3) prevent the exportation of New Jersey slaves to other states; and (4) require masters to educate their slaves. 

After the Revolution, the controversy over slavery increasingly became a conflict between the protection of property rights and the principles expressed in the Declaration of Independence. Several questions arose. Should slavery be preserved because a master's "liberty" encompassed his right to keep slaves? Should slavery be abolished to ensure that liberty also applied to enslaved Blacks? Or should the State adopt some middle ground and gradually emancipate slaves over the course of several generations?

In 1780, abolitionist John Cooper advocated emancipation based both on notions of liberty and fear of divine retribution:
While we are spilling our blood and exhausting our treasure in defense of our own liberty, it would not perhaps be amiss to turn our eyes towards those of our fellow men who are now groaning in bondage under us. We say "all men are equally entitled to liberty and the pursuit of happiness;" but are we willing to grant this liberty to all men? The sentiment no doubt is just as well as generous; and must be read to our praise, provided our actions correspond therewith. But if after we have made a declaration to the world, we continue to hold our fellow creatures in slavery, our words must rise up in judgment against us, and by the breath of our own mouths we stand condemned. . . .

. . . (N)othing is more clear that he who keeps a slave is a tyrant. Without tyranny, there can be no slavery in the sense here meant. And where slavekeeping is countenanced and upheld by any state or empire, the tyranny becomes national and the inequity also; and such case a national scourge may very well be looked for. If therefore, neither the love of justice, nor the feelings of humanity are sufficient to induce us to release our slaves from bondage, let the dread of divine retribution of national calamities induce us to do it.
As historian Arthur Zilversmit has explained, however, the issue of emancipation impacted upon a wide variety of concerns, ranging from the labor market to taxation:
The founding fathers regarded slavery as a complex problem, involving property and the stability of the state. Immediate and total abolition was obviously unthinkable; it would not only have destroyed the property rights of thousands of citizens, but it would have represented a severe disruption by altering an important sector of the labor market in the state. It would have released the slaveowners from the obligation of caring for slaves in their old age and would have forced non-slaveholders to be taxed in order to provide for Negroes who had been unable to save for their old age because they had been slaves and not wage-earners. Many whites were afraid that even the younger Negroes had picked up the traditional vices of slavery-laziness and irresponsibility. They believed that Negroes, unable to read or write, would be unsuited to freedom and would be a disruptive force.


 
 

Ultimately, the proponents of gradual emancipation prevailed. In 1786, the Legislature enacted a statute that represented one of the first attempts in New Jersey to resolve the conflict between slavery and the principles embodied in the Declaration of Independence. Embarking upon a course of gradual emancipation that would guide the State through the nineteenth century, the Preamble of the 1786 Act recognized that eliminating the slave trade was the first step toward reducing slavery in New Jersey. Consistent with these principles, the 1786 statute prohibited, among other things, the importation of slaves from Africa after 1776. The legislation encouraged manumission by eliminating the requirement that a master post a bond if the slave was between twenty-one and thirty-five years of age and of sound mind and body. The law also permitted masters to be indicted for "inhumanely treating and abusing his or her slave." Nevertheless, the 1786 Act made clear that New Jersey was not intended to be a haven for former slaves because it barred free Blacks from moving or traveling to New Jersey. 

Seeking to prevent masters from selling their slaves to the South and the kidnapping of slaves, in 1788, the Legislature prohibited the removal of slaves from the State without first obtaining the slave's consent through a private examination before a justice of the peace. The 1788 law also provided that slaves convicted of criminal offenses receive the same punishment as White lawbreakers. Interestingly, the statute required masters to teach slave children how to read. Lastly, the 1788 law permitted the State to seize and sell slave ships. 

Ten years later, in 1798, with the slave population totalling over eleven thousand, New Jersey enacted a detailed slave code explicitly repealing virtually all preexisting slave legislation. This law attempted to improve conditions for slaves in the State. For example, masters who inhumanely treated and abused their slaves were subject to fines. Also, like the 1788 Legislation, the 1798 Act required masters to teach slave children how to read. Furthermore, the 1798 Act provided that slaves between twenty-one and forty years old who were capable of supporting themselves could be set free without posting a bond, upon compliance with specific manumission requirements including: (1) the execution of a sworn certificate before two witnesses; (2) the signature of two of the township's overseers of the poor township; and (3) the signature of two justices of the peace. Slaves could also be manumitted in a will or upon the posting of a bond of not less than five hundred dollars. 

The 1798 Act, to the dismay of abolitionists, did not, however, outlaw corporal punishment of slaves (which still remained part of New Jersey law). Specifically, the law provided that slaves who "assemble(d) together in a disorderly or tumultuous manner," carried a gun, hunted on Sunday, or were seen outside after 10:00 p.m. without their master's permission, were subject to whipping by the constable. Slaves were also prohibited from testifying in civil matters and were only allowed to testify in criminal cases against other slaves. 

While the 1798 Act restricted the slave trade by permitting the State to seize and sell slave ships, it also supplemented the federal Fugitive Slave Act of 1793 by providing that parties who returned runaway slaves were entitled to a reward, and that those who harbored a runaway slave or helped a slave escape were subject to penalties. Furthermore, the 1798 Act required that free Blacks, both from other states and New Jersey, traveling outside their home county, carry with them certificates of freedom signed by two justices of the peace. 

Lastly, the 1798 Act significantly altered the habeas corpus process by which many slaves had previously obtained their freedom. Prior to the Act, the New Jersey Supreme Court had freed a number of slaves pursuant to habeas corpus petitions brought by the State. The 1798 Act, however, greatly reduced the power of the Supreme Court to free slaves by requiring that a jury be empaneled to decide whether a habeas corpus petition should be granted. 

 



IV. Early Reported Decisions

Virtually all of the early slave-related reported cases involved challenges to manumissions and title to slaves. As slaves had no standing to sue for their freedom, their claims for freedom were typically brought by the State in habeas corpus actions. These early cases are important because they reveal a judiciary that recognized that slavery was inconsistent with the principles of the Revolution, and sought to liberally interpret manumissions, while at the same time believing itself bound by the principle of jus dicere, et non jus dare --a court should state the law, not make it. 

Adhering to the common law tradition that considered slaves mere chattel, New Jersey courts emphasized that "negro slaves have always been looked upon in the same light with other personal property, and transferred in the same manner." Because slaves were considered personal property, the law required that "negroes claiming their freedom() must prove themselves entitled to it." In fact, as late as 1821, New Jersey's highest court affirmed a trial court jury instruction that "all black men, in contemplation of the law, are prima facie slaves, and as such are entitled to be treated as such." 

Overcoming the presumption of slavery was difficult, especially where manumission papers were either defective or never prepared. In State v. Emmons, for example, two Blacks claimed that they had been set free by separate manumissions. The manumission deeds were challenged because only one witness had been present when the documents were signed, not two witnesses as required under the 1798 law. In a two to one decision, the Supreme Court rejected the slaves' claim for freedom. Noting that the 1798 Act was enacted to stop the practice of granting manumissions based on "loose conversations, conditional promises and constructive bargains," Chief Justice Kirkpatrick held that the requirements established by the Legislature should be strictly construed. This was not, however, always the case. In several cases, the Supreme Court held that Blacks had satisfied this burden because they had married, reared children, and lived in freedom for many years. Justice Pennington agreed in Emmons by comparing the manumission requirements to other obligations imposed under the law to prevent frauds:
That the deed of manumission should be executed in the presence of at least two witnesses, appears to me, to be a solemnity introduced by the Legislature, for the purpose of preventing fraud and perjury, and founded on the same reason as the statutes requiring three witnesses to a will; that conveyance of real estate shall be in writing, and that certain contracts shall be void, unless in writing, and signed by the party to be bound by the same. The operation of these statutes may, in certain cases, bear the semblance of hardship (and) may even cause injustice; but no one ever entertained the idea, that a court of law had the authority to dispense with the statutes; and at their discretion, say, that in this case they shall have that effect and in that case not.


 
 

Befitting their status as property, New Jersey courts applied basic contract principles to various commercial disputes involving slaves. In State v. Mount, for example, a slave was sold with the condition that she be freed after ten years if she remained childless. After ten years the slave sought her freedom even though she had given birth to several children. The Supreme Court rejected her petition:
The first bill of sale was absolute; she was actually sold a slave, and the condition in her favor was a condition precedent, which she was bound fully to comply with before she could claim the benefit arising out of it. Unless she performs this condition on her part, the conveyance becomes absolute and the property of the master is not divested.


 
 

In State v. Heddon, a slave named Cork, who had either been captured or had joined the British voluntarily during the Revolutionary War, was committed to the Essex County jail in 1793 on the belief that he was a runaway slave. An individual named Snowden claimed that he had title to Cork based on a bill of sale from Heard, a previous owner. Heard claimed that he had purchased Cork from a Captain Thomas, who in turn claimed that he had bought Cork from a former owner named James. The Court rejected Snowden's claim because no evidence had been offered demonstrating that the original owner, James, ever had title to the slave. In the end, however, the Court freed Cork based on the length of his imprisonment and the absence of any claims to him. 



V. New Jersey Elects Gradual Emancipation

Not until 1804, when the Black slave population totaled approximately twelve thousand, did New Jersey enact legislation that commenced the formal emancipation of at least certain slaves. In doing so, New Jersey became the last Northern state to begin the emancipation process. 

The 1804 law provided that children of slaves born after July 4, 1804 were free, but required that they labor as servants for their master (or his executor, administrator, or assigns): females until the age of twenty-one and males until the age of twenty-five. Slaveholders objected vehemently to this law because, among other things, it forced them to support slave children who would eventually become free. In a concession to slave owners, however, the law provided that slave children over the age of one could be abandoned to the poorhouse. Once abandoned, the children could be bound out to individuals who would receive compensation from the State for the maintenance of each child. Often, the children were bound to their original master. Thus, the law benefitted slave owners because, though they lost a slave, the original master had an "apprentice" paid for by the State. 

The provision regarding maintenance fees in the 1804 law proved to be a tremendous financial burden to New Jersey. In 1806, the Legislature repealed the clause but continued the payments to children who had already been abandoned. Seeking to further reduce the impact of abandonment payments, the Legislature in 1808 required that the local overseer of the poor advertise the availability of abandoned slave children and attempt to place them with persons who would support them without compensation. In 1809, noting that "large and unusual sums of money have been drawn from the Treasury the last year, by the citizens of this State, for maintaining abandoned blacks" under suspicious circumstances, the Legislature mandated that monies would only be paid where the "maintenance of (an) abandoned black is in consequence of a bona fide agreement." The Legislature ultimately repealed the entire payment system for the maintenance and support of abandoned slave children in 1811. 

In the early part of the nineteenth century, New Jersey was plagued by the kidnapping and sale of New Jersey slaves to the South. In an effort to combat these abuses, the Legislature enacted a series of laws that imposed significant penalties upon slave traders.

For example, an 1812 law increased the penalties for transporting slaves or servants of color out of the State without their consent. Masters who did not comply with these requirements were subjected to a possible one thousand dollar fine or imprisonment at hard labor for two to four years. Furthermore, the law permitted the governor to offer a one hundred dollar reward for information leading to the conviction of any person violating this law. 

Following a scandal in Middlesex County involving the sale of both slaves and free Blacks to New Orleans, the 1812 law was repealed in 1818 by comprehensive legislation governing the removal of slaves from New Jersey. The 1818 law prohibited, with only limited exceptions, any slave or servant of color from being "removed, exported or carried out of the state." The 1818 law provided that, among other things, individuals who sold, assigned, or transferred a slave or servant of color with the intent to remove that person from the state were subject to a one thousand dollar fine or imprisonment for one to two years. In an effort to impose more stringent penalties on slave traders, the law doubled the potential fines and imprisonment for any person who purchased, accepted an assignment, or transferred a slave or servant of color, with the intent to remove that individual from New Jersey. As a further deterrent, the law provided that any slave or servant of color sold, assigned, or transferred would be given their freedom. Lastly, consistent with the 1798 Act, the 1818 law permitted the State to seize and sell any slave ship. 

In 1820, with a slave population of approximately seven thousand, the Legislature repealed most of the existing statutes and replaced them with a single law that incorporated and strengthened the prior legislation. The 1820 law remained the central legislation governing emancipation until 1846. The Legislature also reacted to the growing movement to colonize free Blacks and slaves in Africa, by adopting a Resolution in 1824 favoring colonization, provided that the rights of slaveholders were not infringed:
RESOLVED that in the opinion of this Legislature, a system of foreign colonization, with correspondent measures might be adopted, that would in due time effect the entire emancipation of the slaves in our country, and furnish an asylum for the free blacks without any violation of the national compact or infringement of the rights of individuals; and that such a system should be predicated upon the principle that the evils of slavery is a national one, and that the people and the states of the Union ought mutually to participate in the duties and the burdens in removing it.


VI. New Jersey's Personal Liberty Laws

In 1793, Congress passed the federal fugitive slave law that permitted slaveholders to seize fugitive slaves across state lines. The law provided fugitive slaves with little or no protection to establish their freedom in legal proceedings, (i.e. no right to habeas corpus, trial by jury, nor to testify in their own behalf). Not surprisingly, abuses were common and free Blacks were kidnapped and sold into slavery under the pretense of being fugitive slaves. 

In response, the New Jersey legislative provided Blacks (both free and slave) with additional legal protections from arbitrary capture and removal from the State. For example, the 1826 law provided that a master or his agent could petition the Court of Common Pleas to issue a warrant for the arrest of an alleged fugitive slave. The petition had to be supported by an affidavit from the master and certified by the justice of the peace, or an equivalent judicial official, in the state or territory from which the slave purportedly escaped. After the slave was arrested the court was required to hold a hearing to determine if he was indeed a fugitive. If the court concluded that the slave was a fugitive it would issue a warrant permitting the slave's removal from the State. 

The 1826 law also targeted vigilantes. Persons who helped remove an alleged fugitive slave from the State without any legal authorization were subject to a one thousand dollar fine or imprisonment at hard labor for a period of two years, or both. Judges or justices of the peace who failed to comply with the strict requirements of the Act were also subject to a one thousand dollar fine. 

In 1836, the New Jersey Supreme Court, per Chief Justice Hornblower, declared the 1826 Act unconstitutional in an unpublished decision, State v. Sheriff of Burlington, because the statute did not contain a right to trial by jury. The next year, presumably in response to Sheriff of Burlington, New Jersey enacted legislation that gave further protection to Blacks alleged to be fugitive slaves. This Act provided that purported fugitive slaves could have their case decided by three judges, instead of a single judge as mandated by the 1826 law, and had the right to demand a trial by jury. This was the first statute that guaranteed a right to trial by jury to fugitive slaves. The 1837 law also provided that a judge who authorized the removal of a fugitive slave without complying with the requirements of the law was subject to a five hundred dollar fine or two years imprisonment, or both. 



VII. Case Law Prior to the 1844 Constitution

Reported decisions prior to the 1844 Constitution were concerned with a variety of questions including the assignment of Black children under the 1804 Act, the responsibility of masters to care for their slaves, and evidential issues regarding the admission of Blacks as witnesses. An examination of early 19th century New Jersey case law suggests that the judiciary disliked slavery, but was willing to allow the institution to die a natural death without any judicial interference.

In Fox v. Lambson, the Supreme Court reiterated the presumption that Blacks were slaves and could not testify in a civil trial unless the presumption was rebutted. That rule was strictly enforced to bar a prospective Black witness from testifying as to his status. As mentioned above, however, the presumption of slavery could be overcome by demonstrating that a Black witness possessed "the rights and privileges of a freeman." In Fox, the Court noted that there was no express time period concerning how long a Black must have lived as a freeman before the presumption of slavery was rebutted. Comparing the situation to adverse possession, however, the Court suggested a period of at least twenty years. The court also held that, absent proof of an original manumission, the fact that a certificate of manumission was filed in a county clerk's office was insufficient to demonstrate that a Black individual was free and thus able to testify. 

Despite the purported benefits of gradual emancipation, the Supreme Court held as late as 1827 that the 1804 Act did not ban the sale of slave children, even those considered "apprentices." In Ogden v. Price, a thirteen- year-old girl was assigned to the defendants. Relying on the language of the Act that an apprentice was subject to assignment, the Court upheld the contract. 

Chief Justice Ewing, in Ogden, wrote that the Court had "nothing to do" with the "policy" underlying the law or slavery in general. 

Although Chief Justice Ewing recognized the evils of separating children from their parents, he emphasized that the Court must enforce the law as it was written:
Much, too, was said, and justly, in reprobation of personal and domestic slavery in every form; and however we may yield as men and as citizens to the truth of the remarks which did honor to the head and heart of the counsel who submitted them, yet even they, we are persuaded, will not expect that we, sitting in this hall, should, from such considerations, refuse obedience to a constitutional and unambiguous act of the legislature. Our duty is jus dicere, non dare. 
Justice Ford agreed. He specifically rejected the argument that the potential "sale by the assignees at a public auction, will be an outrage upon humanity" because such an argument would, taken to the extreme, "do away with slavery itself by an act of the court." This, neither Justice Ford nor the Supreme Court was willing to do. 

In fact, the Supreme Court reiterated in Stoutenborough v. Haviland, that the sale of a slave is subject to the same legal rules as the sale of any other chattel. The Court did, however, question the presumption that Blacks were slaves absent contrary evidence because most Blacks in New Jersey at the time (1836) were free. 

Several cases concerned who was responsible for the care of aged or infirm slaves. In Force v. Haines, for example, a woman (Haines) sued a blind slave's master (Force) for expenses she incurred in caring for the slave for approximately nine years. A jury found in favor of Haines. In a three to two decision, the Supreme Court reversed. 

In reversing, Justice Ford noted that Haines had not proven that Force had promised her any compensation. Absent that promise or the existence of an emergency, Justice Ford concluded that Haines was entitled to nothing. In dissent, Chief Justice Hornblower argued that it was unfair to penalize Haines because she acted in a humanitarian manner toward the slave. Such a result meant that "(a) master may turn his blind slave, as he would his old horse, into the street, and he who administers to the relief of either, must do it at his own expense." 

Lastly, in The Overseers of the Poor of Perth Amboy v. Piscataway, Perth Amboy appealed a decision that required it to support a slave who was a pauper. The Supreme Court reversed because the slave's manumission papers did not contain the signatures of two witnesses as required by law and, thus, the slave was not a public charge. According to Justice Hornblower, a master or even another municipality cannot make a city liable for supporting an indigent former slave unless "the manumission papers . . . show that he was a freeman and chargeable to the city." Justice Nevius agreed, explaining that two signatures were required on a manumission deed to "make it the duty of the master to supply the township with clear and satisfactory evidence of the bona fide execution of such instrument and of its consequent liability to support such slave in case he should become chargeable, and to prevent imposition of spurious deeds of manumission." 

 



VIII. The Impact of the 1844 Constitution

Article 1 of the 1844 Constitution reiterated the principles contained in the Declaration of Independence:
All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.


 

The adoption of this Article gave new life to abolitionists who believed that the liberty of the remaining six hundred slaves superseded the property rights of their masters. It also set the stage for the most renowned slave case in New Jersey, State v. Post. 

In Post, and its companion case, State v. Van Beuren, the issue before the Supreme Court was whether the 1844 Constitution abolished slavery and the involuntary servitude of slave children. In a three to one decision, with Chief Justice Hornblower dissenting and Justice Whitehead not participating, the Supreme Court held that the 1844 Constitution had no impact upon slavery or involuntary servitude in the State. 

Recounting the long history of slavery in New Jersey, Justice Nevius noted that the Supreme Court had "no power to enact a law, nor to set aside a law, even to remedy what we consider a great private or public wrong or to remove a great public evil; that power belongs to another department of the government." According to Justice Nevius, the "free and independent" clause in the 1844 Constitution was, at best, an "abstract proposition" and did not, in any event, impair the property rights of the slaveholder which Justice Nevius believed were preserved because the 1844 Constitution also provided that "all writs, actions, claims and rights of individuals and bodies corporate shall continue as if no change had taken place." 

Justice Nevius explained that if the framers of the 1844 Constitution had wanted to end slavery in New Jersey, they would have clearly stated their intentions:
Had the convention intended to abolish slavery and domestic relations, well known to exist in this state and to be established by law, and to divest the master of his right of property in his slave and the slave of this right to protection and support from his master, no one can doubt but that it would have adopted some clear and definite provision to effect it, and not have left so important and grave a question, involving such extensive consequences, to depend upon the doubtful construction of an indefinite abstract political construction. 
Lastly, Justice Nevius recognized that the principles expressed in the Declaration of Independence and the federal Constitution could not support ending slavery in New Jersey because both documents tolerated the practice:
The declaration of independence, the basis of our free governments, declares that all men are created free and equal, and the constitution of the United States proclaims that the people have formed it to secure the blessings of liberty to themselves and their posterity; yet by the express language of the latter instrument, the relation of master and slave is recognized; showing that the framers of that constitution did not deem their general declaration in favor of liberty, incompatible with its other provisions; and it has never been judicially determined that slavery in the United States was thereby abrogated. On the contrary it has often been adjudged, both by the State and Federal courts, that slavery still exists; that the master's right of property in the slave has not been affected either by the declaration of independence or the constitution of the United States.


 
 

Justice Randolph echoed similar sentiments reasoning that the "free and independent" provision was not incompatible with slavery, especially in light of New Jersey's long recognition of slavery, because other states as dissimilar as Vermont and Virginia had similar clauses but sanctioned slavery. Moreover, Justice Randolph believed that the course of gradual emancipation adopted by New Jersey, which also required masters to support their aged and infirm slaves, should not be discarded by the Supreme Court absent clear language from the Legislature:
This has been the law since 1804, and under its benign influence slavery in this state has become almost extinct, without leading to poverty or crime, and without the legislature having attempted to make its operation more summary. Without complaint on this subject a convention is called, who propose to the people a constitution, which is adopted, containing certain general phrases of abstract natural right, no stronger than those in the declaration of independence; and under the force of those terms, the judiciary are called on to overthrow by their decision, all the laws on the subject of slavery and its apprenticeship, and to exonerate the master from the support of the infirm and helpless--I do not believe that we possess any such power, or that a fair construction of the constitution can give it to us. 


 



IX. The Legislature's Response to Post

In 1846, after Post was decided, New Jersey enacted legislation that abolished slavery, but did not actually free any existing slaves. Specifically, this law provided that all slaves were "free" subject to certain "restrictions and obligations." One such restriction was that former slaves served for the remainder of their lives as "apprentices" to their master. The legislation, however, did free all children of "apprentices" born after the Act and provided that " apprentices" could petition for their freedom if their master was guilty of " any misusage, refusal of necessary provision or clothing, unreasonable correction, cruelty or other ill treatment." Furthermore, no " apprentice" could be sold without his written consent and, under no circumstances, to a person who was not a resident and citizen of New Jersey. 

As Arthur Zilversmit noted, New Jersey taxpayers were the true benefactor of the creation of bound "apprentices" because most of the remaining slaves in 1846 were aged or infirm. If those slaves had been suddenly freed, many would have required support from the State at the taxpayers' expense. The creation of permanent "apprentices" solved that problem because it required masters to continue to support these apprentices without offending the masters' property rights.



X. New Jersey's Response to Slavery Prior to the Civil War

The Legislature adopted two resolutions in the late 1840s designed to limit slavery to the South. In 1847, the Legislature adopted a resolution that slavery or involuntary servitude, except as a punishment for crimes, should be excluded from any territory admitted into the United States. Two years later, in 1849, the Legislature declared that "the institution of human slavery (was) a great moral and political evil" and sought to bar its establishment in any new territory, including the newly acquired territories of California and New Mexico." That resolution also sought to "speedily abolish" the traffic of slaves in the District of Columbia because it was "inconsistent with the theory of our national institutions, and a reproach to us as a people." Despite those sentiments, the Legislature made clear in the 1849 resolution that it would not interfere with slavery in the South. 

In 1850, Congress enacted the Fugitive Slave Act. That law made it far easier for a master to recapture a fugitive slave, denied slaves the right to habeas corpus, trial by jury, and the ability to testify, and resulted in the retrieval of many free Blacks who had been living in the North for years. Unlike many states in the North, New Jersey failed to enact legislation to circumvent the Fugitive Slave Act. In fact, New Jersey was the only state in the North to actively enforce the federal law. 

In 1860, there were eighteen lifetime "apprentices" in New Jersey. If they survived the Civil War, these "apprentices" did not receive their freedom until the Thirteenth Amendment was ratified in 1866. Only the adoption of that Amendment formally ended involuntary servitude in New Jersey.



Conclusion

Although slavery has not existed in New Jersey for well over one hundred years, the statutes and court decisions regulating that institution remain a part of our legal heritage. As we confront the legacy of slavery, and giving due deference to the abolitionists, we must remember that New Jersey lawyers once earned a fee representing clients who bought and sold persons based on the color of their skin. Similarly, case law memorializes the New Jersey judges who took judicial restraint to the extreme and upheld the statutes and common law principles that held slaves in bondage.

The modern New Jersey Supreme Court has often been unfairly criticized for legislating from the bench instead of merely interpreting the law. We can only wonder whether slavery would have ended any sooner in New Jersey if its nineteenth century courts had, instead of decrying the institution of slavery and pointing fingers at the Legislature, assumed a more activist role in ending the practice.


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