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Taylor v. Savage's Executor. 2 H.

Whatever opinion, therefore, may have been entertained in regard to the effect of the act of 1824, on the practice of the circuit court of the United States, in Louisiana, before the above decision; after it, there would seem to be no ground for doubt. The practice of the circuit court in Louisiana, since the above case was decided, has conformed to the rule laid down in that case. But in the present cause there is no statement of agreed facts. If the case be revised on a writ of error, the evidence on both sides must be considered and weighed by the court, as a jury would consider and weigh it; and after adjusting the balance, the principles of law, not as they were presented to the circuit court, but as they may arise on the evidence, must be determined. This is not the province of a court of error, but of a court of chancery on an appeal from the decree of an inferior court. On such a review, not only the competency of the evidence must be decided, but also the credibility of the witnesses.

The case under consideration was a proceeding at law, and, as the legal points have not been raised by a bill of exceptions, in the circuit court, it is not a case for revision in this court. A judgment of * affirmance is, therefore, entered, at the costs of the plain- [ *395 ] tiff in error

1 H. 287; 2 H. 392; 5 H. 278; 8 H. 470.

William Taylor and others, Appellants, v. GEORGE M. SAVAGE,

Executor of SAMUEL SAVAGE, deceased, Defendant.

2 H. 395.

Taylor et al. v. Savage's Executor, 1 H. 282, affirmed.

2h 5h

The motion to dismiss the appeal was argued by Morehead and Sergeant, for the motion, and by Crittenden and Berrien, contrà.

Story, J., delivered the opinion of the court.

[ * 396 ] The court have had this case under corsideration, and are of opinion that it is completely governed by the decision made in the same case at the last term of this court, which is reported in 1 Howard, 282. An attempt has been made at the bar to distinguish the former decision from that now sought, by suggesting that the former proceeded mainly upon the ground that the appeal was irregularly made, and did not directly involve the question now argued. We think otherwise ; and that the ground of that decision completely covers all that has been urged upon the present occasion; not as mere incidental suggestions, but as the very hinge on which the case turned. Notwithstanding the opinion of this court then

Rhodes v. Bell. 2 H.

expressed, that the case might be remanded to the district court, for the purpose of making the proper parties, the appellants have neg

lected, during a whole year, to take a single step for the [ * 397 ) remanding of the * case, or instituting any proceedings in

the court below; which laches certainly ought not to produce any result in their favor.

The appeal is, therefore, dismissed, and the cause is remanded to the district court of the northern district of Alabama, with leave to the appellants to make the proper parties, and to the new administrator, Benham, to become a party to the suit; and that such other proceedings be had as to law and justice shall appertain.

5 H. 233.

h 397) 7 562

JAMES RHODES, Plaintiff in Error, v. Moses BELL.

2 H. 397. Though the two counties of the District of Columbia are under the same political organi

zation, yet congress has caused the laws of Virginia to continue in force within the one, and the laws of Maryland within the other; and a person declared by the laws of Maryland to be made free, by being brought within that State, is entitled to his liberty, though brought into the county of Washington, which was ceded by Maryland, from the county of Alexandria, which was ceded by Virginia, and though, by the law of Maryland, the owner could not directly manumit the slave who was over forty-five years of age.

The case is stated in the opinion of the court.

Brent and Brent, Jun., for the plaintiff.

Bradley and Hoban, contrà.

[ * 401 ] * M'LEAN, J., delivered the opinion of the court.

A writ of error brings this case before us from the circuit court of the District of Columbia.

Moses Bell, the defendant in error, filed a petition in the circuit court, representing that he was held in slavery by one James Rhodes, of the said county, and prayed that his rights might be inquired into by the court. The defendant pleaded that the said Moses was not free, &c. The jury returned a special verdict, and found “ that previous to the year 1837, the petitioner was the slave of a certain Lawrence Hoff, a resident of Alexandria county, in the District of Columbia ; that in the year 1837, the said Hoff, then owning and possessing the petitioner as his slave, in the county of Alexandria aforesaid, whereof he continued to be a resident, did sell and deliver the petitioner to one Little, then being a resident of Washington county, in the District aforesaid, and that the delivery of the peti

Rhodes v. Bell. 2 H.

tioner was made to the said Little in Alexandria' county aforesaid, and the petitioner was immediately removed by said Little to Washington county aforesaid, to reside, and also for sale, whereof said Little was resident; that the said Little shortly afterwards, to wit, about one year or a little more, sold the petitioner to one Keeting, in Washington county, who sold and delivered him to the defendant; that since said sale to said Little, the petitioner has always been kept and held in slavery in the county of Washington aforesaid ; that at the time of the sale and delivery of the petitioner as aforesaid by Hoff to Little, the petitioner was more than forty-five years of age, to wit, fifty-four or five years."

Upon the above facts, the circuit court held that the petitioner was entitled to his liberty. To revise this judgment, the writ of error has been prosecuted.

In the 2d section of the act of the 19th of December, 1791, the State of Maryland declared : “ That all that part of the territory called Columbia, which lies within the limits of this State, shall be, and the same is hereby acknowledged to be forever ceded and relinquished to the congress and government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil as of persons residing, or to reside thereon pursuant to [ * 402 ] the tenor and effect of the 8th section of the 1st article of the constitution of government of the United States, provided that the jurisdiction of the laws of this State, over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until congress shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article in the constitution before recited.”

Previously to the above cession, in 1789, Virginia ceded to the United States, “ten miles square or any lesser quantity for the purposes aforesaid, as congress might direct," with the reservation that the jurisdiction of the laws of Virginia over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine until congress, having accepted the said cession, shall, by law, provide for the government thereof, under their jurisdiction, in manner provided by the article of the constitution before recited.” This cession was accepted.

By the 1st section of the act of the 27th of February, 1801,' congress provided, “ that the laws of the State of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia which was ceded by the said State to the United States,

12 Stats. at Large, 103.

Rhodes v. Bell. 2 H.

and by them accepted,” &c., " and that the laws of the State of Maryland as they now exist, shall be and continue in force in that part of the said District which was ceded by it, &c.” The part of the District ceded by Virginia constitutes Alexandria county, and the part ceded by Maryland constitutes Washington county.

As the laws of Maryland and Virginia have been adopted by the above act of congress, within the counties respectively ceded, it will be necessary to refer to those laws, so far as they have a bearing in the present case.

By the Maryland statute of November, 1796, 2 Maxcy's Laws, 351, it is declared, “that it shall not be lawful, from and after the passing of this act, to import or bring into this State, by land or water, any negro, mulatto, or other slave, for sale, or to reside within this State ; and any person brought into this State as a slave contrary to this act, if a slave before, shall thereupon immediately cease to be the property of the person or persons so importing or bringing such slave within this State, and shall be free.” The exceptions to the above provisions are,

1. Any citizen of the United States who removes to [403] Maryland, * with a bona fide intention of becoming a citizen,

may bring his slaves with him, or bring them within one year afterwards, provided such slaves have been in the United States three years preceding the time of their removal.

2. By the act of 1797, the above privilege is extended to the executors of such persons, dying within one year after removal, &c.

3. Any citizen of Maryland who being seised and possessed of an estate of inheritance in land in any one of the adjoining States, who employed slaves in the cultivation of said land, is at liberty to bring such slaves into the State for his own benefit, but not for sale, provided such slaves had been in one of the adjoining States before the 21st of April, 1783.

4. Slaves acquired by descent, by a citizen of Maryland, may be brought into the State to be employed by the owner, but not for sale.

5. Travellers or sojourners may bring their slaves into the State.

By a law of Virginia, passed the 17th of December, 1792, it is declared,“ that no persons shall henceforth be slaves within this commonwealth, except such as were so on the 17th of October, 1785, and the descendants of the females of them." And the 2d section declares, that all “slaves which shall be brought into this commonwealth and kept therein one whole year together, or so long at different times as shall amount to one year, shall be free.” The third section imposes a penalty on any person who shall import slaves

Rhodes v. Bell. 2 H.

into the commonwealth, and also upon any one who shall sell or purchase such slaves. Exception is made of a person who, with a bona fide intention of becoming a citizen of Virginia, removes into the State, and exceptions extend to some other specified cases.

By the 7th section of the act of congress of the 3d of May, 1802,1 it is provided, that no part of the laws of Virginia or Maryland, declared by an act of congress passed the 27th of February, 1801, concerning the District of Columbia, to be in force within the said District, shall ever be construed so as to prohibit the owners of slaves to hire them within, or remove them to the said District, in the same way as was practised prior to the passage of the above-recited act."

Again, by the 9th section 2 of the act of the 24th of June, 1812, congress provides, “ That it shall be lawful for any inhabitants in either of the said counties (of the District) owning and possessing any slave or slaves therein, to remove the same from one county into the other, and to exercise freely and fully all the rights of property in and over the said slave or slaves therein, which would be exercised * over him, her or them, in the county from whence the [ 404 ] removal was made, any thing in any legislative act in force at this time in either of the said counties, to the contrary notwithstanding."

From the foregoing legislative action, it will be seen that the counties of Washington and Alexandria are governed by the laws of the States to which the territories composing them were respectively attached before the cession. This is especially true in regard to the importation and sale of slaves. Neither the act of congress of 1801, adopting the laws of the respective States, nor the act of 1802 above cited, inade any modification of the Virginia or Maryland law in regard to slaves. It was, undoubtedly, the policy of congress, until the

passage of the act of 1812, to preserve the same relation between the counties of the District, on this subject, that existed between the two States.

A slave imported from Virginia to Maryland, not within one of the exceptions named, was free by the Maryland law. And it is not pretended that Bell can be brought within any one of the exceptions. The jury found that Little purchased Bell in Alexandria county, and brought him into Washington to reside and for sale, the purchaser being a resident of Washington county. Now, independently of the act of 1812, no one can doubt that this act of the purchaser entitled the petitioner to his freedom. Indeed, he is entitled to it, under the express provision of the Maryland law.

1 2 Stats. at Large, 194.

2 2 Ibid. 757.

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