Vinyard v. Passalaigue

delivered the opinion of the Court.

In August,. 1822, Mrs. E. Peake was the owner of the negroes in question.

By her last will, proved before the Ordinary, 28th August, 1822, Mrs. P. bequeathed these negroes to the plaintiff, J. Vinyard, and made him executor ; but enjoined that the negroes were “ by no means to be considered in a state of slavery.”

Under this injunction, Mr. Vinyard permitted the ne-groes to have their own time, as if they were, in the terms of his testatrix, “ by no means to be considered in slavery.” Vinyard was clearly not the true beneficiary. But by law, he became the owner of the slaves. This practical enlargement from the bonds of slavery continued to December, 1842 — more than 20 years from the death of the testatrix, and of course, from the ownership of Vinyard. But in December, 1842, he re-took possession of the negroes; they soon escaped and came into the possession of Mr. Passalaigue, who claimed them as his property. But at the trial of the case, he declared his object was to keep the negroes free. Thus it would seem, that both parties united in sentiment. This statement of the facts of the case, together with the statute of 1820, (7 Statutes,) which prohibits any oth#r emancipation of a slave than by an Act of the Legislature, constitute the premises of the charge of *541the Circuit Judge. The jury were instructed, that since the Act of 1820, emancipation could only regularly take place by Act of the Legislature; but that time, (twenty years,) stood in the place of all written muniments of title. If, therefore, the negroes had been permitted to go at large and be free for 20 years, the jury might presume that they were legally manumitted and set free, i. e. by Act.

The appeal from such judicial charge to the jury, is this — that in any view of the evidence, the laws of South Carolina do not justify the presumption of a statute, for the purpose of perfecting the supposed emancipation.

The legal proposition of the Judge, that such a statute might be presumed, is to be affirmed or disaffirmed by the Court.

It is conceded law, that after twenty years’ possession of property, the absolute presumption of law is, that all the usual written muniments of title belonged to such possessor and occupant of the property, so as to vest it fully in him. But can there be, by law, the like presumption of a statute to emancipate negroes? Is such an Act to be presumed, like a common muniment of title? I would by no means say, that no Act of the Legislature can be established by presumption.

Several dicta of learned and authoritative Judges have been cited, in favor of such presumption of a statute; and one very respectable writer (Best “ on Presumptions,” p. 145,) lays down the rule as extending to statutes. But I suspect that the instances are confined to statutes within the plain intendment of law and order, to guard an inveterate possession of property ; but which presumed statutes, must in no way run counter to the policy of the State. — ■ Such is the solitary instance of Stafford Sg Llewellin, cited by the Judge in Skinner, 77. It consisted in the presumption of a statute to enable the Black Prince to convey the lands which had been long in defendant’s possession. But the case itself is not reported, Presumptions are called the intendments of law. They are in pursuance of the allowed principles or permissions of the established law; but cannot be permitted, when they are in hostility to them.

*542Let us then enquire, what are the laws of South Carolina upon the subject ot African slaves.

By the Act of 1740, 7 Stat. S97, it is enacted that “ al negroes, Indians (free Indians in amity with this govern naent and negroes, mulatioes, and mustizoes, who are now free, excepted,) mulattoes or mustizoes who now are, or shall hereafter be, in this province, and all their issue, offspring, born or 1o be born, shall be, and they are hereby declared to be, and remain forever hereafter absolute slaves, and shall follow the condition of the mother, and shall be deemed, held, taken, reputed and adjudged in law to be chattels personal, in the hands of their owners and possessors, and their executors, administrators and assigns, to all intents, constructions and purposes whatever,” &c. &c.

The Act further provides, that in all suits, for the freedom of a negro, “ it shall be always presumed that every negro, Indian, mulatto and mustizoe, is a slave, unless the contrary can be made to appeal:, (the Indian in amity with this government excepted,) in which case the burthen of the proof shall lie on the defendant.”

After an unbroken senes of Acts predicted upon the same’ State policy, we come to the Act of 1800, prohibiting- any emancipation except after a strict personal examination of justices and freeholders, 7 Stat. Lastly comes the Act of 1820, prohibiting any emancipation except by Legislative Act, 7 Stat. As the case will turn upon the doctrine of presumptions, let me give an instance or two of presumptions that have been well established, by way of illustration .

The law authorizes and urges the payment of bonds and judgments, therefore, they may be presumed to be paid, after the lapse of twenty years ; it is the same of all authorized muniments of title : after long possession, they are presumed in the occupant.

The law provides for the issuing of grants for vacant land — therefore, grants may be presumed from long possession. But suppose the land office closed ; in that case, no such presumption would be made, because you cannot presume against law. This last instance is the only one *543analogous to the presumption before us, and shows it to be inadmissible.

The law discourages and forbids emancipation; shall we then presume such emancipation by a special law, in the face of such evident intendment to the contrary? But further, special presumptions take precedence of general presumption ; Best 54. The express presumption of the law is, that Africans are slaves. Shall we raise up an antagonistic presumption, to counteract that special one of the Act of 1740 ? Surely not.

But again, “ it (presumption) does not extend to records and public documents which are of record for their preservation, and therefore must be proved by search in the proper office, and if lost, by secondary evidence.” See 1st Greenleaf, 24 ; 5 Pick. 490.

And assuredly a Statute is emphatically one of such public documents on record. The case of presuming grants for lands, would seem an exception : perhaps, because a grant is a'common muniment of land titles. But even a grant cannot be presumed against law. I have endeavored so far, to-put the present decision out of the reason for the doctrine of absolute presumptions of law, or what civilians call presumptiones juris et de jure. But such presumptions of law and out of the law itself cannot ex vi termini be against the law. Legitimate presumption is the inference of law and reason, from the facts proved by something indicated by, though beyond such facts. It follows, that, the inference cannot stand when it conflicts with the law. All the legal presumptions cited by Greenleaf, from p. 18 to 49, 1 vol., to illustrate the general rule, plainly imply this exception. Let me give a single instance taken from the highest authority ; (Story’s Conflict of Laws, 36, 37. The Bank of Augusta v. Earle, 13 Pet. 519.)

A spirit of comity and friendly intercourse are presumed among nations, and if there be no express rule affirming or denying the operation of foreign laws, Courts presume their adoption by their own government, unless repugnant to its policy or interests. — 1 Green., p. 45. Now to conclude this head of the argument, admit that statutes may be presumed *544in some cases — can you even then presume the statute required, when it would be repugnant to the policy and laws of the State 1 It cannot be done, because it would be against the sense of lawful presumptions. I now proceed to show that the case is decidedly settled by the very recent adjudication in the case of McCarty against McCarty, and to point out the strict analogy between that case and the present, confident that the good sense of our law, respectively applicable to them, will be apparent and satisfactory.

The question in McCarty's case was, whether we can presume an Act passed to divorce husband and wife, in any case, (that being tíre only way of effecting a divorce). In the case of McCarty against Me Garty, the plaintiff made out a just title to the land. But he claimed, through the deed of Mrs. Worthington. The defence was, that she being a married woman, her deed was void. The evidence proved that Mr. and Mrs. Worthington were lawfully joined in marriage in the year 1799; but that the ill-assorted pair forthwith separated, disavowed the marriage bonds, and remained apart, as unwedded persons, to the time of trial — i. e. for forty-nine years. The question 'was then made — may not the Court and jury, in favor of so fair a title, and of such unhappy connubial bonds, and after so great a lapse of time, presume an Act of the Legislature, separating the man and wife ?

The Court decided, that however common such a legislative Act in many States, it would be a presumption against the settled and wise policy of this State, which makes the marriage tie not merely during good behavior, or subject to the will or management of the parties, but lasting as the vinculum matrimonii, at common law; and for the same reasons, this guard of order, temperance and virtue in men,, and of the justice due to woman, is made absolutely indissoluble during the lives of the wedded pair. That therefore, and by force of such settled State policy, no such presumption can be judicially permitted. In the case of the State v. Barfield, 1 R. the Court affirmed the same principle, even in the case of an incestuous marriage. Because any instance, once so tolerated, might in time introduce an entire innovation in this stern and enduring, but wholesome and essential principle of the family compact between the sexes. The entire reasoning and policy in this decision of McCarty against McCarty, apply strictly to the case of Vinyard and Pass ail-aigue. A presumption, equally repugnant to this State’s policy, is demanded.

In the former, the inflexible rule of marriage has its moral justification in the human mind and character. Bind a man *545down to any situation, without possible expectation of change,, and he instinctively seeks his own happiness from that very situation, untoward as his lot may seem to other men. Every one is conscious of this instinct of human nature. It consists-in no more than justness of conduct to a man’s self. In the' casé now before the Court, this strict State policy, prohibiting all emancipation of slaves within the State, by the owner,, has further a necessary and moral justification, arising from, the long experience of very many of these United States — all of which, at least all that were once British Colonies, held, by-British laws, African slaves.

And the experience of all these States is, that the white Caucasian and the black African races cannot live together upon terms of equality. Wherever tried, whether in the English settlements on the coasts of Africa, or as coolies in Jamaica, or as apprentices in Illinois, or as emancipated in New York or Philadelphia, Africans become, and do, as fully as in Charleston, constitute the contented menials, or other subordinate servants of white men. There is no where any practical equality. In this brief notice of .the State policy, and its. reasons, upon which is predicated the prohibitory Act of 1820,, a policy plainly developed by the slave Act of 1740, we may perceive the whole argument that forbids, as in the case of marriage, the presumption that an Act-of emancipation had been passed by the Legislature. Such a presumption, from ¡on-ly twenty years’' of evidently permissivq, exemption from practical slavery, would be not merely incredible,, but would run directly counter to the express presumption of the Act of 1740 — that all Africans shall be presumed slaves, until their emancipation be proved.

In a word, the presumption, enacted by the Act, and which .expressly requires evidence to rebut it, estops all counter presumption.

But laying aside'all legal rules, who does not know of many instances of negroes, still slaves to their masters, yet commanding their own time, and practically, at least, in the language of Mrs. P. “ by no means in slavery.” Under-such injunction from Mrs. P., the ready acquiescence of *546Mr. V., and this practical enlargement of faithful or favorite negroes, which is so frequent, what reason is there to strain presumptions, as counter to the policy of the law 'l As to our knowledge of the subject, and our credence of the probable truth of the case, there can be none.

The master that would make his slave absolutely free, must send him out of the State. But, if he would indulge further philanthropy, by keeping him here, the negro must run the risk of his being seized by any stranger; and the master, that of being liable for his necessary support. For this see the case of City Council v. Cohen, where the negro being abandoned, and unable to support himself, the master was held liable to the city for his reasonable support.

Thus by our laws, the master cannot free himself from his legal liability, by his own emancipation. Our slave code is consistent and essentially suited to the natural endowments of the white and black man ; and in no way is it regardless of just humanity to slaves.

But it is settled, strict, undisguised, and express in its policy: therefore, we cannot presume a Legislative Act of emancipation. It must be proved, before the master and the negro can be divorced from their respective legal ties. A new trial is therefore ordered.

dissenting.

In this case, I feel that it is due to myself, as well as to the case, that the reasons of my dissent should be stated, so that it may be seen how far I may be in; if indeed in error I am at all.

^ None of the various grounds of appeal need be noticed, except that which has called for the repeated arguments which this case has received. It is whether 1 was in error in ruling, that when a negro had enjoyed freedom for twenty years, since 1820, the jury might presume that she had been legally manumitted and set free by an Act of the Legislature,

*547This instruction was based upon the doctrine, acknowledged universally in our Courts, that twenty years stands in place of that ancient unremembered period, beyond the reign of the 1st Richard, which, in England, was regarded as that “ beyond which the memory of man runneth not to the contraryIn McClure v. Hill, 2d Law Rep. by Mill, 424, the Court, by one of its greatest and most distinguished members, (Judge Cheves,) laid down the rule that, after 20 years’possession or enjoyment of lands, a grant was to be presumed. This was, I think, well settled even before that case; and not only in reference to grants, but also as to prescriptive rights, and all other matters to be presumed from lapse of time, it has been ever since uniformly followed. After a lapse of twenty years’ possession of lands, or enjoyment of an easement or right, the legal presumption of “ omnia presumuntur esse vite acta?’ necessarily arose. “The extent to which Courts of Justice will presume in support of Acts, depends very much whether they are favored by the law or not.” Best on Presumptions, p. 74, chap. 2d, 61. In conformity to this rule, it was held in Columbia at our last sittings, in McCarty v. McCarty, that a divorce, even after a lapse of forty years’separation, and exclusive possession in the wife, couljl not be presumed. The reason is obvious; such a thing was contrary to the whole policy of our law : the Legislature never have passed an Act of Divorce, and hence no such presumption could arise. If this were a parallell case, of course that authority would conclude it. But the Legislature have admitted the possibility of manumission, by providing in the Act of 1820, “ that no slave shall hereafter be emancipated but by Act of the Legislature.” Act of 1820, 7 Stat. 459. In 1822, such an Act passed for one of the faithful and devoted servants, who revealed the contemplated insurrection of that year; and I hope the , Legislature of 48-49 will adorn their statute book, by an enactment in favor of the slave who stood by his master in the bloody issues of the late Mexican campaign. Indeed, I hope, I may be allowed to say, that after 27 years’ experience, under the Act of 1820, I think its policy so questionable, *548that it ought to be repealed. A law evaded, as it is, and against which public sentiment, within and without the State, is so much arrayed, ought not to stand. It is better by far, that a wise and prudent system of emancipation, like that of 1800, should exist, rather than that unlicensed emancipation, according to private arrangement, should take place.

The rule, however, stated by Best, does not mean that presumptions may not arisé even where there are statutory restrictions j but when the law, the common law, does not favor a matter in aid of which a presumption is invoked, then it is, that the Court either will refuse to presume at all, or require a greater length oí time, or some facts indicative of its existence.

What is there in the policy of the law of South Carolina to forbid emancipation, by an owner, of a faithful, honest, good slave 1 Have we anything to fear from such a liberal and humane course 1 I should be sorry to believe that our domestic institution of slavery required any such restriction upon the rights of owners. Indeed, when any thing is pushed to extremes, injury is done by it; and that is now the case of the Act of 1820, and other kindred provisions in other Acts. They are continually thrust in our faces by those who undertake to meddle with matters which do not concern them, as evidence of our injustice, and our sense of error in our slave system. For one, I have no hesitation in declaring, that we ought todo right by repealing all such enactments, and that then we should have nothing to fear from anything which our meddling friends, in other States, may think proper to say or do against slavery. We are secure, when we can say. as one man, negro slavery, as it existed at the adoption of the Consti. tution, as it exists noto, is an institution to he regulated by the States in which il exists ; and is not to he touched by Congress or the other States, or their people. The motto of the Thistle, “ noli me tangeref ought to be ours on this subject.

Still, as I have already said, our duty is, to think and act right towards the beings who are our slaves. The first *549thing which ought to be done, is to get back alongside of such men as C. J. Rutledge, who, in the case of the Guardian of Sally v. Beatley, 1 Bay, 262, in speaking of the purchase of a girl by another slave to set her free, asked the emphatic question, “ would a jury of the country say no ? He trusted not — they were too humane and too upright, he hoped, to do such manifest violence to so singular and extraordinary an act of benevolence.” This was the expression of the benevolent feelings which had been tried in the crucible of the revolution ; there was perhaps no very correct notion of law in the ruling of the case, yet it spoke what, I think, always belongs to Carolina — a love of mercy, of right, and a hatred of that which is mean or oppressive.

Until fanaticism and folly drove us from that position, the law of our State had uniformly favored emancipation by owners, of their slave property, with such limitations and guards as rendered the free negro, not a dangerous, but an useful member of the community, however humble he might be. It is time we should return to it, and say to all at home or abroad, we have nothing to fear from occasional emancipation. Every one knows, that the free ne-groes in South Carolina are far, very far, from being a class of people envied by our slaves. Generally, they are worse off in every respect. They throw themselves under the sheltering wing of some benevolent white man, and, instead of being- formenters of insubordination and rebellion among slaves, they pursue a directly contrary course.

But I have said enough on this head, more perhaps than the case called for.

The first question is, can freedom, from its enjoyment by a negro for twenty years, be presumed? It is unnecessary to reason about it, it has been so decided; in Miller v. Reigne. 2 Hill, 592, it was held that twenty years enjoyment of freedom by a negro, commencing before 1820, would create a presumption that a deed conformably to the Act of 1800 had been executed. The same doctrine was again laid down in the State v. Hill, 2d Spears, 150. There was in that case 33 years enjoyment of freedom, and the Court *550said, “ it was exactly the case in which the legal presumption stood in the place of the deed, certificate of the magistrates and freeholders, the record of the deed and the office copy” required by the Act of 1800. So in the State v. Hardin, 2d Hill, 152, note, it was ruled that if a negro had the reputation of being free and was found in the possession of freedom, it was prima facie sufficient evidence that he was free.

The second question which now arises, is, since the Act of 1820, can a jury, who may find that a negro has been for twenty years in the enjoyment of freedom, presume an Act of the Legislature? What is to prevent it? An Act conferring freedom on a negro is nothing but a muniment of title; it is essentially a grant by the Legislature of cl fran fihise ; it stands, therefore, upon exactly a parallel ground to that of a grant of land, which we have seen may be presumed after a lapse of twenty years. That by searching the records, it would appear that no such Act passed, cannot affect the question, for two reasons: 1st. No such search was made and proved in this case; next if it had been, it would not alter the law. A grant of land could be shown in every case of presumption, by a search in the Secretary of State’s and Surveyor General’s offices, never to have existed, yet no one doubts, that notwithstanding such a search, twenty years possession would raise the presumption. In McClure v. Hill, 2 Con. Rep. by Mill, Cheves J. as the organ of the Court, speaking of a presumption of a grant from twenty years possession, said : “This rule of presumption is a safe one, as it is only applied where the possession is rightful, to invest that possession with a legal title; nor is it necessary that there should be evidence to impress belief on the mind to authorize this presumption.” So in Miller v. Reigne, 2d Hill, 593, which was the identical question before the Court, except that there a deed, executed with many legal solemnities, and just as capable of being found on record, if it existed, was to be presumed, instead of an Act of the Legislature. It was said, “the lapse of twenty years did well authorize the legal presumption of the regular execution of the deed of manumission required by the *551Act of 1800.” In the same case, the rule, as stated by my brother Evans, in Hutchison v. Noland, 1 Hill, 222, was cited and approved. He said “I think it is clearly deducible from all the authorities, that presumptions are rules of law, which in themselves, are evidences of, or muniments of title, which a jury is as much bound to give effect to, as to a deed which is unimpeached.” If these authorities are to be relied upon, they clearly establish the rule, that time (20 years) is in place of any muniment of title necessary to give effect to a right of which a party is in possession. But it is said, an Act of the Legislature cannot be presumed. Best in his treatise on presumptions, p. 145, chap. 3d, sec. 109, says it may be. In Eldridge v. Knott and others, Cowp. 215, Lord Mansfield said, “ Lord Coke says somewhere that an Act of Parliment may be presumed.” The case of Crimes v. Smith, 12 Rep. 4, was the case of a vicarage, which was presumed to be endowed from lapse of time, under the maxim omnia jjresumuntur solemnitur esse acta, and I presume from it being referred to, as one of the authorities to prove that an Act of Parliament may be presumed, the ruling in it is regarded by English lawyers, as equivalent. But in the case oí Viscountess Stafford and Lewellen Skinn. 77, 78, the long sought for case will be found. In that case, it is said Farrar’s case was cited in the common pleas,.where Farrer made a title from the Black Prince, which could not be out of him but by an Act of Parliament, but yet, and for that the possession had gone otherwise ever since, the Court presumed, that there had been such an Act of Parliament, tho’ not now to be found The case of Howard v. Faber, 2nd McC., Ch. 446, certainly strongly sustains the same notion. For there the Court presumed a power in the ordinary which could only have been given by an Act of the Legislature. Yet from his having exercised it from the earliest times, it was thought to be legitimate to presume, that an Act had been passed, conferring the power.

After these authorities, I don’t see how it can be hereafter denied, that an Act of the Legislature, as a muniment necessary to confer private right, may be presumed, after a lapse *552of twenty years. Nor can I see how such a presumption can be denied to a negro who has been for twenty years in the enjoyment of freedom. In the case before us, the bequest to the plaintiff shows that the slaves bequeathed to him, of whom Mary Anne was one, were “by no means to be considered in slavery.” In conformity to this, the plaintiff has suffered her to go at large, and be free for twenty years ! Is not the rule of law, that any thing necessary to give effect to the state {freedom,) in which we find the woman, is to be presumed? To my mind, reason and authority alike concur in making it plain that it is so. But it is said, you are not to presume against belief, and that with our knowledge of what has been done in the Legislature of South Carolina, we cannot believe such an Act has ever passed. If we stand on the cases in our own State, and believe in the decisions of our own Courts instead of those of Westminster Hall, there is no room to doubt, that lapse of time, (20 years,) is, as a rule of law, giving effect to a right, and belief is not necessary. The cases of McClure v. Hill, Hutchison v. Noland, Miller v. Reigne, and The State v. Hill, are full to that point. It is true that Best, in his treatise on Presumptions, chap. 3, sec. 110, p. 146, 147, says that the practice of advising juries to make artificial presumptions, was formerly carried too far, and several recent cases are cited, which maintain the doctrine that presumption cannot, arise, unless there be enough to create belief. I acknowledge that it is very possible those cases were decided right. For there are many cases in which the presumption ought not to arise, except as a matter of belief— such as cases of lost papers, accompanied by a possession of less than twenty years, but aided by other circumstances, which would show their existence. But it is unnecessary to cavil about the matter, for the jury here were told that they might not — that they were bound to presume the Act. This is exactly putting the matter where Bayley, J, placed it, as matter of belief, in Doe & Fenwick v. Reed, cited by Best. But if, as is supposed, it was still stronger put, in summing up the charge, that the jury ought to presume it, Still that was only matter of advice, not inconsistent with belief, and will very well stand the test under the rule stated by Best.'

New trial-ordered.