Commonwealth v. Aves: 1836

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Commonwealth v. Aves: 1836

Name of Respondent: Thomas Aves
Cause of Action: Writ of habeas corpus for a slave girl, Med
Commonwealth Attorneys: Ellis Gray Loring, Rufus Choate, Samuel Sewall
Respondent's Counsel: Benjamin Robbins Curtis, C. P. Curtis
Judge: Lemuel Shaw
Place: Massachusetts
Date of Decision: 1836
Verdict: Med was freed, becoming a ward of the court

SIGNIFICANCE: Shaw's opinion in the Aves case established a precedent in law that slavery was local and liberty general. This precedent was widely appealed to by antislavery forces in their future litigation.

In 1836 New Orleans resident Mary Slater went to visit her father Thomas Aves in Boston, bringing with her a young slave girl about six years of age named Med. While in Boston Slater fell ill, and asked her father to take care of Med until she recovered. During Slater's illness, the Boston Female Anti-Slavery Society, antislavery sympathizer Levin H. Harris, and others sought a writ of habeas corpus against Aves, asking by what right he was holding Med. Aves answered that he was acting as his daughter's agent. This reply brought the case before the Massachusetts Supreme Court and its famous chief justice, Lemuel Shaw.

What followed turned into a judicial inquiry into slavery's legality in Massachusetts, although at first the question was narrower. While some cases had already held that a slave became free when the master took him or her permanently into a free state, no court had ever addressed the question of a slave who left the slave states temporarily with his or her master. In that regard the Ayes case foreshadowed the U.S. Supreme Court's infamous Dred Scott decision of 1857. Lawyers for the commonwealth included Ellis Gray Loring, a prominent member of the Massachusetts Anti-Slavery Society, while Aves was represented by Benjamin Robbins Curtis, who would serve as an associate justice of the Dred Scott Court.

Slave or Free?

The Massachusetts court heard the case in a single, long day, from nine in the morning until seven at night, with practically no recesses. During the elaborate arguments, Loring and the other antislavery lawyers argued that slavery could not exist in Massachusetts unless the commonwealth expressly allowed it. Curtis and his co-counsel disagreed sharply. The federal Constitution clearly required the return of fugitive slaves who escaped to free states, they pointed out; thus a slave did not become free merely because he breathed the air of a free state. He told Shaw and his fellow jurists that what they thought, whether "as men or as moralists," was not at issue; only what the law said was moral mattered, and American law recognized slavery.

A unanimous court ruled against Aves a week later. Shaw first decided that Massachusetts had clearly abolished slavery, although he had great trouble pointing to exactly when and how it had done so. He proclaimed that "by the general and now well established law of this Commonwealth, bond slavery cannot exist, because it is contrary to natural right, and repugnant to numerous provisions of the constitution and laws." He then asked how far Massachusetts must go in respecting a slaveholder's property rights. Citing large numbers of English and American cases and commentators, he found that although the federal Constitution required a state to return a runaway slave to his or her owner, Med was not a runaway. Mary Slater had willingly brought her to Boston. Since Massachusetts was a free state, Shaw concluded, Slater could not exercise her property rights in a slave while there. He found that "all persons coming within the limits of a state, become subject to all its municipal laws, civil and criminal, and entitled to the privileges which those laws confer; this rule applies as well to blacks as whites." The court thus barred Slater from taking Med back to Louisiana, ordering that Med be put into a guardian's custody instead. She was later adopted by Isaac Knapp, the publisher of the leading abolitionist newspaper The Liberator. Antislave forces had won an important battle.

Shaw's opinion in Commonwealth v. Ayes stands in sharp contrast to Thomas Ruffin's opinion in State v. Mann. The Mann opinion was short, clear, logical, and well-crafted. It also led to a result that hindsight reveals as immoral. In contrast, Shaw's Aves opinion was long and rambling, relying on hyper-technical legal discussion and poor logic, but it reached a more morally acceptable result, although Southern slaveholders disagreed. Together the two cases showed a widening gap in the courts and the constitutional system between what was legal and what was right, a gap that eventually became a civil war.

BRuckner F. Melton, Jr.

Suggestions for Further Reading

Cover, Robert M. Justice Accused. Anti-Slavery and the Judicial Process. New Haven, Conn.: Yale University Press, 1975.

Levy, Leonard W. The Law of the Commonwealth and Chief Justice Shaw. Cambridge, Mass.: Harvard University Press, 1957.

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