Anderson v. Garrett

delivered the opinion of this court.

The first question presented for review in this court, by the record before it, is, did Baltimore county court err in overruling the plea in abatement to its jurisdiction, filed by the appellant, to the appellees’ petition for freedom? The plea alleges that each and every of (he petitioners did, at the time of filing said petition, and long before, reside, and have ever since resided, under the direction of the said Thomas Anderson, their master and owner, out of the jurisdiction of Baltimore county court, and in Howard district of Anne Arundel county. By the law of Maryland, as far as regards liberation from slavery, a negro is regarded as the slave of him by whom he is held in bondage, until his right to freedom is established by the judgment of the court, competent to try such right. By the act of 1796, ch. 67, sec 21, the county court of that county in which the “petitioner or petitioners shall reside, under the direction of his, her, or their master or mistress, or owner,” are exclusively vested with the power of trying the petition for freedom. That the petitioners at the time of filing their petition and for some time before, resided under the direction of the appellant their assumed owner, in Howard district of Anne Arundel county, are facts stated in the plea in abatement, and are not traversed or disproved, but on the contrary are fully established by the proof in the cause.

In acquiring a residence by a slave, he has no will of his own. Neither his acts unauthorised by his master, nor his volition form any ingredient in the constitution of his residence. Its creation and continuance depend entirely upon the acts and intentions of the owner, whose power of changing at his own will and pleasure the residence of the slave, is a matter resting entirely in his own discretion. In Johnson vs. Tompkins, 1 *129Baldwin’s Rep., 577, (a case involving the rights and powers of slave-owners) Justice Baldwin of the Supreme Court of the United. States, says: “As a consequence of the right, of property, the owner may keep posession of his slave; if he absconds he may retake him by pursuit into another State, and may bind or secure him in any other way to prevent his second escape; he may arrest him by the use of as much force as is necessary to effect his reclamation; he may enter peacably on the property or into the house of another, taking care to commit no broach of the peace against third persons. But it is no breach of the peace to use as much force or coercion towards the fugitive as suffices for his security; as without such force no slave could be retaken without his consent. The master may also use every art, device or stratagem, to decoy the slave into his power; odious as these terms may be in their application to an unlawful act, they ought to be considered as far otherwise when used for a lawful and justifiable purpose.” Jf these powers exist in the master in regard to a fugitive slave, (as they unquestionably do,) they are equally inherent in him, when he seeks to change the residence of his slave, or to obtain a more secure possession of him, or when acting under an apprehension of his design to abscond.

In overruling the appellant’s plea, in abatement and awarding a responda,at ouster, we think Baltimore county court erred, for which error its judgment must be reversed. And there being no jurisdiction in that court according to the express provision of the act of 1795, to entertain the petition before it, no ■procedendo can be awarded.

From the preceding remarks of this court, it is not to be understood as having decided, that in no case can a petition for freedom be sustained in a county court, other than that in which the petitioner resided at the time of filing his petition. A case may well be imagined, where such a right would be sustained. As for example, where it appears that a master, having given residence to his slave in county A. for instance, upon being informed that he is there about to file his petition for freedom, *«rid knowing that the evidence necessary to maintain the peti*130tion can be conveniently obtained only in that county, and having no sufficient reason to believe that a fair and impartial trial cannot there be had, in fraud of the jurisdiction of the court of the county A, and to prevent a fair trial of the claim of the petitioner, removes him to another county;-in such a case the county court of A, might exercise its jurisdiction and proceed on a petition for freedom in the same manner as if such change of the residence of the slave had never taken place. ‘ But such is not the case now before us appearing either in the petition or proof.

The decision thus expressed upon the first bill of exceptions would, as it might well have done, have terminated the duties of this court in relation to the case now before it. But the legislature of Maryland having required our decision on all the bills of exceptions, taken in the case, we now proceed to the discharge of the remaining portion of the duty thus imposed upon us.

The second exception of the appellant is taken to the overruling of his suggestion made under (he act of 1810, chapter 63, sec. 3, for the removal of the cause to the court of Howard district of Anne Arundel county. The suggestion being made upon oath, and “supported by competent testimony,” it was submitted to the county court, under an agreement of the parties, containing a provision, “that the testimony already on file in this cause may be read in evidence subject to legal exceptions.” Under this submission “the testimony already on. file” being subject to legal exceptions, was inadmissible. The court below in determining on the sufficiency of the suggestion for the purpose for which it was offered, is confined to the competent testimony offered in its support, and cannot receive any evidence upon the subject offered by the opposite party. To warrant the removal under the suggestion, the act of Assembly requires that the person, “claiming to be the owner of the said petitioner, had actually held the said petitioner in bondage.” In construing this clause of the act of Assembly, if we can do so, consistently with its general intent, we ought to give some import to every word used in the enactment. “Actually held *131in bondage,” was intended to mean something more than a mere legal or constructive holding in bondage; it means a holding in bondage in point of fact. The suggestion and affidavits thereto, prove, that as a matter of fact, the appellant had actually held in bondage the petitioner Rebecca, but not her children, the oilier petitioners, within the contemplation of the act of Assembly. Of them he had but a legal, a constructive holding in bondage. Had the appellant in his suggestion prayed for the removal of Rebecca Garret's case only, it ought to have been granted by the court below. But having prayed for the removal of the petition of all the petitioners, for the reason we have stated, we think the county court did not. err in its general overruling of the appellant’s suggestion.

The ruling of the county court excepted to, is thus briefly stated in the appellant’s third bill of exceptions. “ The defendant having asked of the witness whether the petitioner was not married, and had a husband, to which the witness answered that she had, and his name was William Garrett. The counsel of the petitioners then proposed to ask the witness, what was the character of said husband, to which the counsel for defendant objected; but the court overruled the objection, and allowed said question to be asked, which was asked, and the witness answered the question to the jury, and to which opinion of the court the defendant, by his counsel, excepted,” &c.

The bill of exceptions does not disclose for what purpose the question objected to was asked, and there is nothing in the record from which this court cao infer its pertinence or materiality to the issues before the jury. It ought, therefore, to have been rejected by the county court as aa immaterial and impertinent question. But although the county court erred in permitting the question to be asked and answered, yet, as it does not appear to us that it could have had any influence on the jury in their finding on the issues in the cause, it forms no ground for the reversal of the judgment of the court below.

We concur in opinion with the county court, that by the last will and testament of Sarah Cord, the petitioner, Rebecca, Garrett, was not manumitted. The testatrix declares, that *132her negroes are, by her will, “liberated and set free, in the manner and form following, that is to say: my negro man Tom, my negro man Joshua, and my negro woman Phebe, to be free, to all intents and purposes, from the date of my decease; my negro woman Beck, and my negro man Basil, to be free at the expiration of four years from the date of my decease; my negro boy Levi, my negro boy David, my negro girl Semj, my negro girl Muriah, my negro girl Elizabeth, my negro girl Matilda, my negro boy Elias, my negro child William, all and each of them to be free, when they arrive at the age of twenty-five years, them, and their issue or increase, forever.” On reading this will, that the testatrix designed to enumerate all the slaves on whom manumission was conferred, and to prescribe the periods at which the manumission of each was to lake effect, we regard as a proposition too manifest on the face of -the will to admit of controversy. Some of them were to be free at her death, some four years afterwards, and some with their issue or increase, as they should respectively arrive to the age of twenty-five years. As to the issue of her negro woman Beplc, who was to be free four years after the testatrix’s death, she has made no provision, and, consequently, under her will, they have no claim to freedom. Had she designed it, she would have so declared in her will, and would, as she did in every other instance, have specified the period at which emancipation was to commence. Our province is not to speculate as to intention, and give efficacy to bequests not expressed in the will, but to declare its true intent and meaning, upon a fair interpretation of the terms and expressions which it contains.

The appellant’s fourth bill of exceptions raises various questions as to the correctness of the ruling of the county court in granting the fourth prayer of the appellees, and rejecting the two prayers made by the appellant, and in instructing the jury, that they were “ at liberty to infer from all the circumstances in the case, that letters of administration were granted on the estate of Mrs. Cord, and that her estate had been duly administered and gll its debts paid. ” In granting the fourth prayer of the petition ■■ *133ers, the county court erred, in the opinion of this court, for various reasons, any otic of which we deem sufficient to have prevented the prayer being granted in its entirety. The first error deemed necessary to be mentioned, is presented by the first and second sentences, (according to its punctuation,) of the petitioners’ fourth prayer, which are in these words: “ If the jury find from the evidence in the cause, that Sarah Cord made her will, as stated in the first prayer, and by sail! will appointed John Cord the executor thereof; and that said John Cord, after the death of Sarah, find in or prior to the year 1819, cold personal property left by said Sarah, and acted in reference to said property as executor. The jury may presume, from lapse of time and all the evidence in this case, that said John Cord acted under letters testamentary upon the estate of Sarah, legally granted to said John.” The only evidence upon which the jury wore authorised to find this presumption was, the will of Sarah Cord, and the proof of Beal Slinchcomb, which, as regards this question, is as follows: “that John Cord, named as executor of Sarah Cord, sold the rest of the negroes,” except Beck, the petitioner. But in what character John Cord sold the negroes; at what, price they were sold; whether the sales were consummated by payment of the purchase money; whether the negroes sold were ever delivered to the purchasers, and if so delivered, for what length of time they remained in their possession; and whether John Cord paid the debts of die deceased, or otherwise administered her assets, are facts for die ascertainment of which the proof in the cause ^furnishes no solution. There is no evidence that any inventory was ever returned to the orphans court of Anne Arundel county, or any account of the executor settled before it. or that it ever passed any order; or that any proceeding was ever had before it recognising John Cord as the executor of the deceased. The exhibit of the will and the isolated fact, that££Jó/m Corel, named as executor of Sarah Cord, sold the rest of tiie negroes,” is not evidence legally sufiicient to warrant the jury in finding that “John Cord acted under letters testamentary upon the estate of Sarah, legally granted.” And such a presumption is strongly repelled by *134the provision in the will of the testatrix, “ that no letters of administration be taken out on her estate.” Under all the circumstances of the case, the only rational conclusion at which the jury could, with any certainty, arrive, was that no letters testamentary had been granted.

It hence results, that the court erred in granting the third sentence of the prayer: “That the jury may further presume from lapse of time aforesaid, and all the other circumstances in this case, that the estate of said Sarah was fully administered and all debts paid.” There having been no letters testamentary granted, no such presumption can legally arise.

The fourth sentence of the fourth prayer is as follows: “And if the jury find from all the circumstances in this case, that the petitioner Rebecca, openly and publicly acted for herself, as a free person; making contracts as such, for a period of twenty years, or any considerable length of time less than twenty years without the interruption of any one; and also find the aforesaid John Cord having knowledge of her so acting, nor any one else adopted any steps to claim her as a slave; and shall further find that the children of the said Rebecca, acted under the direction and control of said Rebecca as free persons; that no attempt was made by John Cord or any one else to claim them as slaves; then the jury may find that they are abandoned and allowed to go at large as free persons, without anjr claim to them as slaves: and if the jury find these facts, these petitioners are entitled to their freedom. ” In granting this last sentence of the fourth prayer, we conceive there is error, upon several distinct and and independent grounds. The facts stated in the affidavit for the removal of this case from Baltimore county court to the court of Howard district of Anne Arundel county, are not in evidence, and for our consideration upon the questions before us, under the appellant’s fourth bill of exceptions. There was proof before the jury that the petitioner Rebecca Garrett, was part of the personal estate of Sarah Cord at the time of her decease; and there is no evidence to show she was then the property of any other person. There was no evidence to show that. John Cord ever entered *135into any contract by which liebecca Garrett was to be free, or was intended go to bo; or that by word or deed (other than her going at large as a free person, as the prayer puis it to the jury to find, with his knowledge,) recognized her to be such. There is a total absence of all such facts as taken iu connection with the actual enjoyment of the right claimed, have in somewhat analogous cases been deemed suilicient to authorise a jury in finding, or presuming, the existence of a deed, conferring the right, where the time of its actual enjoyment lias been for a less period than twenty years. This court have said in Burke vs. Negro Joe, 6 Gill and John., 136, that “negro’s going at large and acting as free for any length of time, will not per se, be a suilicient foundation to presume a deed. Because he might be in that situation without the knowledge of his owner, or there might be no person legally authorised to claim him,” or, it might have been added, that the owner might have been unsuccessful in his reasonable efforts to assert his rights, or that the place or circumstances under which the slave acted asa free man, excused him from making the usual efforts to reduce him to bondage. We regard it as a principle equally clear with that referred to in 6 Gill and John., that no'presumption of a deed of manumission is authorised as a matter of law to be declared by the court; or as a matter of fact to be found by the jury, upon the mere ground that a slave has gone at large and acted as a freo man with his master’s knowledge, unless such going at large and acting as if free, be for at least twenty years uninterrupted duration. The county court, therefore, erred in declaring that the petitioners were entitled to their freedom had they thus gone at large as free for any time less than twenty years. It erred also in saying that freedom was so consummated by “any considerable length of time less than twenty years.” The word, “'considerable,” when thus used, being a term of too indefinite import to be left to the finding of a jury, and tending to confuse or mislead them. One juror might deem six months, another six years, another ten years, another sixteen years, as the considerable length of time within the meaning of the county court; and thus the obvious tendency *136of granting the prayer, would be to distract and mislead the jury. The giving the prayer was also wrong, because it submitted to the finding of the jury a knowledge in John Cord, without a particle of testimony having been offered to show it.

The conclusion of the prayer, (which asserts the freedom of the children of Rebecca, because they acted as free persons under her direction and control, without any attempt by John Cord or any one else to claim them as slaves; and that the jury might thence find that they were abandoned,) is also erroneous. It warrants the jury in saying (hat the negroes are abandoned and free, although John Cord, had no knowledge of their ever having acted as free persons. What import the author of the prayer designed to give to the word “abandoned,” does not perhaps very distinctly appear. But if it meant to assert that abandonment by the owner of a slave that he might be free, is, per se, a legitimate mode of manumission in Maryland, it is a proposition as novel as it is contradictory to the express provisions of our act of Assembly upon the subject. A man. may to day abandon his slave as free, and to morrow take possession of him, and his title to him is as unquestionable as if no such abandonment had ever been made. In Maryland the law recognizes but two modes of manumission; the one by last will and testament, the other by deed, duly executed, acknowledged and recorded. It is true, such deeds of manumissions, are sometimes presumed to exist without their production, but abandonment, per se, is no sufficient foundation for such a presumption.

This prayer, however, is radically wrong, upon another ground than those which have been stated. An executor has no power, as such, in this State, to execute a deed of manumission; it would be a palpable violation of his duty; a fraud upon the creditors or representatives of the testator, which the law would not tolerate. No presumption either of law or fact, that such a deed was executed by the executor can ever arise, or give to petitioners a title to freedom.

From the preceding part of this opinion, it is apparent, that the appellant by his first prayer having asked less, and but a part of what he had a right to demand at the hands of the *137county court, there is error in its not being granted. That this court dissent from the instruction given by the county court, is shown by its decision on the third sentence of the fourth prayer of the petitioners. The appellant having, for the same reasons assigned in his second prayer, why the petition should not be sustained, pleaded to the jurisdiction of the county court, and that plea being overruled by the court, and a bill of exceptions taken by the appellant to its ruling, it was not bound to entertain a prayer, the only effect of which would have been the reiteration of a decision already pronounced by the court, and from which a bill of exceptions had been taken. By such reiteration no additional injury would have been inflicted on the appellant, and the court’s refusal to make it by rejecting the prayer, forms no ground for the reversal of its judgment. If the court can be required again and again to reiterate its decision upon the same point, there would be no end to litigation, and a trial might be procrastinated almost indefinitely.

We concur with the county court in overruling the appellant’s suggestion for a removal of the cause, as stated in his second bill of exceptions, and also in refusing to sustain his second prayer as stated in his fourth bill of exceptions, but dissenting from its rulings in the first and residue of the fourth bill of exceptions, and its instruction given to the jury as stated in the fourth bill of exceptions, its judgment is reversed and no procedendo will be awarded.

JUDGMENT REVERSED.