Butler v. Craig

Whereupon the Court gave the following opinion : That without a conviction in a Court of Record of Irish Nell’s having intermarried with a slave, she could not become a slave, nor could her issue become slaves by virtue of such intermarriage, ²¹⁶ That no presumption of such conviction arises from the petitioner and her ancestors having been always held ifi slavery. That the Court being satisfied that the records of St. Mary’s county have been lost since the period at which such conviction is supposed to have taken place, it is not necessary to show the record of the said conviction, but that hearsay evidence, being the best that can reasonably be expected in this case, may be admitted to prove that such conviction did take place. That no length of possession of the said Irish Nell and her descendants from the said marriage as slaves, nor any of the facts related- in any of the depositions taken in the said former -cause, are sufficient to satisfy the Court of such conviction. (Hanson, J. and Goldsborough, J.) ²¹⁶ To this opinion the defendant’s counsel excepted.

By the second exception it appears, that the defendant by his counsel, produced and read in evidence to the Court, the record, proceedings and judgment, in the Court of Appeals, on a petition filed by William, and Mary Butler, the father and mother of the present petitioner, against Richard Boarman, by which said record it appears, that the Provincial Court gave judgment, at September term, 1770, for freedom to the petitioners, which judgment of the Provincial Court was reversed by the Court of Appeals at May term, 1771. And the defendant prayed the opinion of the Court, that the said judgment rendered in the Court of Appeals, was a good and sufficient bar against the present petitioner, and ■ sufficient to preclude her from any relief on her present ''petition. ■ But the Court were of opinion, that the said record, proceedings and judgment, were no bar to prevent the petitioner from claiming and having her freedom. (Hanson, J. and Goldsborough, J.) To which opinion the defendant excepted, and appealed to the Court of Appeals. ²¹⁷ Lv the Court ot? Appears. /fenings, for the appellant.

The petitioner is a mulatto, and descended from a free white Irish woman, called Irish Nell, who came into the province with Lord Baltimore, and intermarried with a negro slave during the existence of the act of 1663. After this act was repealed, Nell had children in consequence of this marriage, who were the ancestors of the petitioner. And the question is, whether she is entitled to freedom ? This question was heretofore determined on a petition of some of the same family of mulattoes, against one Boarman, of Charles county.

The Provincial Court adjudged they were entitled to freedom ; but on appeal, this judgment was reversed. The act of 1663, c. 6. reciting and condemning the practice of white women intermarrying with negroes, by which means also divers suits might arise, touching the issue, &c. enacts, “ that whatsoever free-born subject woman, should intermarry with any slave from and after the last day of that assembly, should serve the master of such slave during the life of her husband, and that all the issue of such free-born woman so married, should he slaves as their fathers were.” The act of 1681, c. 4. reciting the ill use that had been sometimes made of the former act, by masters, &c. of white women procuring such marriages, and that inconveniences might arise by controversies touching the issue of such free-born women, enacts, “ that if any master, fkc. of any free-born English or white woman, should by any instigation, procurement, &c. suffer any such free-born English or white woman to marry a slave after the last day of that session of assembly, he should forfeit his title to the service of such woman, and the said woman should be free, &c. A penalty of ²¹⁸ 10,000 pounds of tobacco is laid upon the master for procuring or suffering such marriage, and the like penalty upon the priest who should marry them,”' &c. Then follows the repealing clause: “ And be if. enacted, &c. that an act, entitled, an act concerning negroes and slaves, be and is hereby utterly repealed, and made void; provided, that all matters and things relating in the said act to the marriage of negroes and free-born women and their issue, are firm and valid, according to the true intent and purpose of the said act, until the present time of the repeal thereof, any thing |n this act to the contrary notwithstanding.” Two points arise. 1st.

Jf the Court ought not to he hound by the former judgment. 2d. If the repealing act affects cyiy issue born of marriages contracted during the existence of the law of 1663, or if it ought to be construed to affect the marriages of white women with negroes, and the issue of such marriages only which happened after the repealing law. As to the first it ought to be considered as a bar, being solemnly determined by a Court of the dernier resort. And if it is not a bar, it is tantamount to saying, that po judgment on a petition for freedom shall determine the property, but that every individual may petition as often as he pleases, notwithstanding the condition of his ancestors has been legally determined, and this without any new evidence.

This would occasion such perplexity and expense to masters, that they had better emancipate their slaves at once, if they claim freedom, than be involved in endless litigation and perplexity. It is a principle of justice, that the effect of decisions should be mutual. If the ancestor is adjudged free, it would liberate the issue, and if the master kept them in slavery, he would be subject to an action, and the judgment would be conclusive against him, unless he could show circumstances to distinguish the case, and the ²¹⁹ irius pr obi nidi would be on him, ex censequenti it should have similar effects in his favour. The very point in issue has been tried before, where the ancestor was á ■slave; Every judgment of a Court is conclusive, until reversed by appeal, or writ of error.

But if the judgment appears iii force on the record, and the effect of it is to be impeached or destroyed in a collateral suit, it would he better to have no judgments, for they will only serve to mislead. Suppose the case of a replevin for negroes, would not a judgment respecting the slavery of the parent bind the issue ? If a judgment is to be impeached cir destroyed, great public inconvenience, as well as private injury, will enure from such doctrine. The former adjudication Settled the law respecting the act tíf Í663.

No person would hesitate, after it, to purchase such issue as slaves. No parent would think he made a precarious provision in devising the issue of such as had been adjudged slaves, and no doubt many purchases, bequests and distributions, of them have been made, as well as executions on them to satisfy creditors, all which may be bet afloat, if such petitions are retained. The judgment of a Court now would be no more conclusive than a former one, and on any change of the Judges, either the petitioners or their masters might incline to bring on the matter again, in expectation of a change of opinion in their favour. Could the former petitioners, against whom the judgment was had, petition again ?

If they could not, then they might be slaves under the same law that frees their issue. 4 Vin. 18. pl. 19. 2 Show. 213. The petitioner should, at all events, show something happening since the former judgment to vary his case, or some fraud (which should be mentioned in the petition) practised in obtaining the former judgment, in ²²⁰ chancery a decree is conclusive, but may be opened on a discovery of fraud. If a petition for freedom is likened to a bill in chancery, an allegation and proof of such fraud should be made. If a new petition may be by the issue, in order to controvert a fact, yet certainly it ought not to be admitted to controvert a legal construction of an act of assembly, which has settled the law.

This Would be making all legal decisions uncertain. The former decision has now become a rule of property, which it is dangerous to set aside. This is not like a rule of practice, which may be altered, and is only a future regulation that does not affect former transactions. 1 Bl. Rep. 264. 696.

It was a great field of argument some years ago, whether the increase of female slaves should go to a devisee for life of such slaves, or to the person to whom they were limited over. It was determined in the Court of Appeals, that they should be the property of the devisee for life, otherwise the devise might be of more expense than benefit to him, by his maintaining the issue until they were capable of labour, and on his decease, they would be lost to his family. Numbers of slaves have been held under this decision, which is considered as a rule of property, and no Court should destroy it by a'contrary determination. ‘ Those who argued contrary to that decision, insisted, that under the rule of the civil law, partus sequitur ventrem, and that where the female parent went, the issue should follow her. But the Court thought this rule only applicable to the condition of the issue, and not to their station, that is, their property.

The judgment, that the parent is a slave, must be a bar to the issue, unless :'uey claim freedom by a different or prior title. There the determination that the parent is a slave, shall uot affect'the issue, as where the iusue proves an act of manumission, though the parent ²²¹ was a slave. This is claiming freedom under a different, title. Again, if by committing a particular offence, a person was to be a slave for life, there the issue, by showing how the slavery of the ancestor commenced, and their prior birth, would show a prior title to freedom. 2d point.

That it was the received construction of the repealing act, at the time it passed, that it did not affect the issue of marriages, contracted during the law of 1663, may be collected from their having been always held in slavery. And usage is a good exposition of a statute. Doug. 232. 2 Rep. 81. If the masters were actuated entirely by interest, yet there were persons who would probably have interfered, and such a gross violation of -the law would hardly have passed unnoticed.

By the act of 1663, a property is undoubtedly vested in the masters of white women marrying slaves, and in the issue of such marriages and their descendants. And this was a property he had a right to dispose of, and the purchaser would have the same right. It would have been unjust in the legislature to have made an ex post facto law, which might have affected innocent purchasers. It was confirmed among the perpetual laws. 1676, c. 2. 2 Ld.

Raym. 1352. 2 Show. 16. The objection is, that the words in the repealing law, until this present time of the repeal, £s?c. prevents the law of 1663 from having any future efficacy, and, consequently, that it had no force whatever from that time. This construction is making the words altogether nugatory. For example, the marriages under the former law, were already continued until that time ; the master had already had the benefit of the service of the mother and the issue until that time.

This is saying nothing at all, nor paying any regard to the other expressions, that “ all matters and things relating to the marriage of free-born women and their issue, are firm and valid, according to the true- intent and purpose of the said act, any- thing in ²²² this act to the contrary notwithstanding.” What, in the act of 1663, related to the marriage of free-born women and their issue i The answer is plain, that Such women should serve during life, and all their issue should be slaves ; then all these ihings are to be firm and valid. But how are they so, if the repealing act entirely alters the effects; for a thing can never be said to remain in the same position, when its position is changed. By construing, theref ne, the words “until this present time of the repeal .hereof,” in the sense they contend for, the other expi essions have no effect. But the words until the present time, £i?c. may be construed to have a consistent effect with the whole, to wit, that all such marriages, after the law of 1663, until this present time, and the issue of such marriages, shall be regulated by that law, but that such marriages, and the issue of such marriages, from that present time, (the time in the repealing act,) should n t be affected by the law of 1663.

This, construction gives force to all the expressions, preserves former rights, and guards against future abuses. 1 Show. 108. And that the legislature had this effect in contemplation, is evident from the proviso, which is plainly thrown in to pre vent any construction, that the effects of marriages, under the law of 1663, were to be destroyed. They make use of the words, shall be utterly repealed and made void. \'s'c. It appears they were apprehensive these words right be thought to affect interests acquired under the former law, and therefore threw in the proviso to prevent such construction ; and,the general words in the provi so, had they not been qualified, would leave the act of 1663 as it was.

If the legislature intended to destroy all consequences under the act of 1663, they would have used the words that “ no matters or things, i\c, should be valid from thenceforth,” instead of expressions which are directly contrary. It was not unco» unon with the legislature, in re ²²³ pealing acts, to insert clauses saving of rights under former laws. But it never yet was contended, that such a saving destroyed or abridged those rights, when it is evident, from the insertion of such a clause, the intent was to preserve them. See the act of 1704, c. 67.

If the words “ until this present time of the repeal ¿hereof,” had not been inserted, the two clauses-would have been contradictory, for the law of 1681 would repeal that of 1663, and yet continue it as to all its eífeets ; therefore, until this present time was thrown in to prevent such effect. To get over the objections that the repealing law did nothing, if it only confirmed things before until that time, it was said that the issue born before should continue slaves, but those born after the repeal should be free. What reason could the legislature have for such a dis tinction ? The making of the issue slaves was intended to deter women from such unnatural marriages, by the punishment of their issue.

This punishment was intended to be continued or removed by the repealing law, as to marriages during the act of 1663. If to be continued, why should the issue born at one time, be more severely punished than those born at another ? Pari ratione, if intended to be removed, why should it he from one and not the other. The legislature meant to preserve all effects of marriages under the act of 1663, or they did not; if they did, there was no reason for a discrimination of punishment, with respect to the. issue; if they did not, there was no reason for a discrimination of favour.

Whatever may be our ideas now, at that time it would hardly have been thought politic, or productive of public convenience, to have made this distinction. To have part of the children of the same parents slaves and part free, might have occasioned scenes of villany, where those whose oaths were admissible, might have been witnesses ²²⁴ fortlie others, and iniquitous scenes of collusion carried on aniongst them. Sue It a distinction too, would have been a punishment on the owner of the mother, who must either maintain such after-born children, or suffer them to perish. This effect the legislature must have foreseen, and would doubtless have guarded against it, if theii intention was as contended for.

Again, this distinction of the prior and after-born issue destroys the principle, A at the act of 1663 was to have no effect after the repealing law, and admits, that the words until this present time are not to be tied up strictly to that period, but are to receive a future construction. If the legislature had in view the meaning contended for, how easy was it to have added the words now born, after the words “ free-born women and their issue,” instead of the comprehensive word all. In short, there is not one syllable in the law io justify this supposed construc-i tion. The repealing law does not consider the act of 1663 so unjust or impolitic, but they repeal it only on account of the abuses that had been committed under it; they could, therefore, have jjo intention to destroy any of the rights of persons that were founded on a law, which law in itself they appear to have considered as a proper one.

Suppose a law was passed that all conveyances to a man and his heirs should e in writing; that twenty years after, a law was made, reciting that many persons had been inveigled to make such conveyances, and that no conveyance to a man and his heirs should be effectual, unless acknowledged and recorded, and then suppose' a clause similar to the present, for repealing and making void the former act, with a proviso also, similar to the one in question, would it be right'to say that the estate of the party, though acquired under the former law, should immediately cease after the repealing act, and that It only meant to render valid what had passed before! ²²⁵ The estate had been possessed until that tirrie, therefore it was saying nothing at all. To get over this, suppose it should be said, that the heirs born before the repealing act, should enjoy it during their lives, but not their heirs after them. Would not this he giving up all reliance on the words “ until this present time of the repeal,” &c. be a manifest contradiction to the other words in the proviso, and a flagrant act of injustice.to those who derived rights under the former ? The cases are similar, except, that one respects real, and the other personal property.

Suppose, after the act of 1715, c. 44. making all negroes and other slaves, then imported, or thereafter to he imported, and their children then born, and thereafter to be born, slaves, a law had been passed, reciting that negroes were trepanned from their country, and then repealing the law of 1715, c. 44. and adding the same proviso as is added in the act in question. Suppose a law made, giving the property of horses that run wild in the woods, to the person taking them. Suppose, afterwards, a repealing law made, which recited, that whereas many people had turned out and drove into the woods their neighbours’ cattle, which, after running some time wild they had taken up, and to avoid these mischiefs repealing the first law, with the same proviso, and in the same words as the present oiie, would not the takers up of cattle hold the stock coming from what they had properly taken up, under thé law ? It is objected, that the repealing of an act does not destroy mesne rights, derived under the original act¿ therefore a bare repeal was sufficient, if rights so derived were intended to be continued.

Therefore, by using the words “ until this present time of the repeal thereof,” the legislature meant to prevent the continuance of such mesne rights, after the repeal, and aiso to prevent persons from being molested for having exercised such rights under the original law, and this will give force to ²²⁶ the words “ until this present time,” &c. otherwise they would be nugatory. In answer to this, it is asked, why insert in the act the words “ that