Townshend v. Townshend

Mason, J., delivered the opinion of this court. If anyone of the several objections which have been urged by the appellants’ counsel, to the regularity and validity of this proceeding, be tenable, it will constitute a sufficient ground for a dismissal of the bill. The proper mode under our laws, by which to try the title of a negro to his freedom, is by petition filed in the circuit eourt. This right is to be asserted subject to certain restrictions and privileges, which neither party, nor no tribunal has the power to disregard.

By the act of 1796, ch. 67, one of those privileges secured to both parties, consists in the right of peremptory challenge. It is clear therefore, that any tribunal that would attempt to adjudicate upon the rights of an alleged slave, (except under some other specific proceeding pointed out by statute,) in a manner which would deprive him of this right of challenge, would act in violation of law, and its proceedings be therefore irregular and invalid. Such we regard the proceeding in this instance. The title of tLe negroes to their freedom is the question to be determined in this controversy, and yet this is proposed to be decided, in a manner which precludes the exercise of the right of challenge secured to the negro.

The suggestion, that issues might be framed and sent from the court of chancery to a eourt of law, for trial before a jury, where the right of challenge might be exercised, will not avail, because it makes an absolute right of the party, depend, in a measure, upon the discretion or grace of the court of chancery. Nor is the case varied by the application, con ²⁹⁶ tained in the bill for issues to try the question of the sanity of the grantor, in the several deeds of manumission in question. If this application were granted, it would only secure the right of challenge but once, while there are a number of negroes, whose freedom depends upon the result, all of whom, individually and separately, are entitled