Mahoney v. Ashton

The Court of Appears, [Eums'ey,- Ch.- J.- Mackall,. Jones, Potts' and Dennis, J,] gave the following opinion^ viz. “The court disagree with the general court in their opinion in the third Mil of exceptions. The court are of opinion, that the general court ought not to have permitted the special verdict, found on the first trial, wit ich was set aside, (because a fact was not sufficiently found,): to be read in evidence on the second trial* They consider it a good Kile, that on a second trial, no advantage or use shall be made by either of the parties of the first ii ridings or of the opinion of the court in settingaside that verdict, but that such second trial shall, as far as possible, be conducted as if no prior trial had' taken place.- The record before' the coui’t proves the propriety of thé rule. On the first trial an objection was made by the defendant below to a deposition offered by the plaintiff, the general court overruled the objection, the deposition was read, aiid the defendants counsel then took an exception to their opinion.By granting a new trial, and admitting the verdict iir evidence, the defendant there is deprived of the benefit of his exception, and he is liable to be affected by the verdict that may possibly in some measure have been int~ fiuencsd by the evidence excepted to. [323] As to t)ie fourth bill cfi 'mjs. tins :c<n>«íA ave of opinion that the general ctiu-k, v >, ■ AA;t in nJheir uxvec • tion to the jury. It is merely stated that Jinn Joice was in England, and came, from thence, without shewing her condition previous to the period alluded to, whereby it doth not appear that she was ever held or claimed as a slave at any time, and it might be that she was a white woman, or native of England; presumption, when admitted, being in favour of freedom. In deciding this exception, the court do not think themselves at liberty to travel out of the exception, or notice any fact not therein stated. Upon the fifth bill of exceptions this court disagree with the general court. It is in that exception stated (‘that Jinn Joice, a negro woman, was carried with her owner, Lord Baltimore, claiming her as a slave, from the Island of Barbadocs to England, and afterwards brought into this country by him, claiming her as a slave, between the years 1678 and 1681; and that she, during her life, was held and treated as a slave, and that her issue have been held as slaves ever since.” It is not stated that her case was ever before a British op any other tribunal, or had received a judicial decision. ' (ireat industry hath been used, and great ability displayed by the counsel, in the argument of this cause. The decision, involving on the one lnindthe question of freedom or slavery to the plaintiü’ below, and on the other great pecuniary interests to. persons claiming negroes under similar circumstances, demanded it. The court have felt the importance of the subject, and giv en it their most serious consideration. If this case was before a British court, it would seem, that tiie question should be decided according to the British law, as it stood between the years 1678 and 168.1, and not by the law as it in ay have been modified or altered subsequent to that period. No adjudged case in the British books hath been cited, nor have the court been, able to, find, one comingup to the case in the exception. Opposing cases as well as opinions of particular judges and law writers,, have been cited as applicable (a the case. About the period of Jinn Joicc-’s being in England, a diversity of opinions prevailed on that subject. At one period it was held by a judge, that a slave, by being brought to, England thereby became free. Sometimes it hath been, held that trover would lie, at ouier times that it would not; that the sale of a negro was a sufficient consideration to support assumpsit to pay the price; that a master, deprived of his slave, might support an action per quod servitiuni amisit. By British charters, and British acta of parliament, the slave trade hath been authorised and. [324] encouraged, and sla' es have been considered there as merchandise, as chattels, as property, and have, by a statute, operating in this state, been subjected to be sold and disposed of as other property for the payment of debts. Lord Chief Justice Talbot, and Sir Philip Forke, in 1729, expressly declare, that a slave, coming’ from the M est-Indies. with or without his master, to Great-Britain or Ireland, doth not become free, and that his master’s property or right in him is not thereby determined or varied, &c. And that his master may legally compel him to return. This opinion is recognised by Hardxoicke, acting as chancellor, in 1749, and that trover would lie for a negro. Judge Blackstone in his Commentaries, in 1765, (11 edition, vol. 1, page 127,) says, that a slave or negro .the moment he lauds in England falls under the protection of the laws, and so tar becomes a freeman; though the master’s right to Ms service may probably still continue. And in page 424, repeats the same, and adds, that the law will protect him in the enjoyment of Ms person and property; but yet with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before; for this is no more than the same subjection for life, which ever! apprentice submits to for the space of seven years or more, &c. In the British books slaves are sometimes called slaves ,or servants; and it is said by Lord Mansfield in Somerset*s case; that there may be a villein in gross by confession. In the case of Somerset in 1772, Lord Mansfield mentioned the •opinions of Sir Philip Forke, and Lord Chief Justice Talbot, in 1729, and recognized by Lord Hardxoicke in 1749, and calls them two of the greatest men of their own or any times, and says he pays all due attention to their opinions. Lord Mansfield puts several questions as to the law with respect to their settlements, their wages, actions for any slight coercion by their masters. In Somerset?Mease the court declined deciding the question, whether by being carried to England be thereby became free; but say, that they would judge upon the return of the habeas corpus, and according to their own jaws, which did not admit of so high an act of dominion as in that case had been exercised by the master over his slave, and therefore that Somerset must be discharged. Lord Mansfield, in Somerset's case, say s, that the state of slavery is so odious that nothing can be suffered to support it but positive law. In this collision of individual opinions, and opposing decisions, in the British books, this coui’t will not say what would have been the decision of a British tribunal [325] on the question stated in the exception; and acting as a court of an independent country, unfettered by any polifical stipulations on subjects of tills nature, and bound to decide according to the laws of this state, they do not consider themselves at liberty to adopt an opinion that might possibly prevail in a foreign tribunal. By a positive law of this state in 1715, then the province of Maryland, the relation of master and slave is recognized as then existing, and all negro and other slaves, then imported, or thereafter to be imported into this province, and ail children then born, or thereafter to be born, of such negroes or slaves, arc declared to be slaves during their natural lives. This case, being brought before the court by original proceeding, we are of opinion that it must be gov: rned by the law of this state; and that in this case, however the laws of Great Britain in such instances operating upon such persons there, might interpose so as to prevent the exercise of certain acts by the master, not permitted, as in the case of Somerset^ yet upon the bringing Jinn Joice into this state, then the Province of Maryland, the relation of master and slave continued in its extent as authorised by the laws of this state; and therefore that the judgment of the general court must be reversed. As to the other bill of exceptions, (the first) this court concur with the general court. The second bill of exceptions not being before the court, no opinion was given thereon. Judgment Reversed, and procedendo awarded.