SAMUEL MAVERICK against THOMAS STOKES.

Charleston, 1803.

gro claims his freedom from

SPECIAL action on the case, in nature of a writ of Where a ne ravishment of ward, to try the freedom of a negro man, named Michael.

a person residing in a sister state, a paper

purporting to

be a pass only,

mount to a

manumission, although it ap

In support of this action, several witnesses were called by the plaintiff, who deposed, that they had known the negro in question at Baltimore, where he had kept a cake and ale house; and also in Wilmington, in the state of Delaware, where he pursued some other business; and that in both negro may places he appeared to be independent of any master, and conducted himself like a free man.

In further support of the plaintiff's case, the following written certificate or paper was produced, (to wit.)

"This is to certify to all whom it may concern, that Michael, a negro about 5 feet 9 inches high, 21 years of age in August last, has my permission to go about his lawful busi ness; but it is understood that this is not to operate as a pass, if ever the said Michael, or Peggy Burton his wife, should return to the state of Maryland, but that he shall be liable to be taken up and treated as a slave.”

"Given under my hand at the city of Baltimore, this second day of April, 1799. (Signed,)

"Thomas Rutter."

On the part of the defendant it was proved, that the said negro Michael did, in violation of the condition in said certificate, return to the state of Maryland. And it was mutually agreed upon by the parties to this suit, that the sole question in this case should be, whether the ward of the plaintiff was free or not? and that no question should be made as to defendant's title, or how he came by him.

Dessaussure, on the part of the plaintiff, contended, that his keeping a house, and dealing for himself in the place

pear that such have been per

mitted to have

worked out, for his own e

molument, in

such neighbouring state.

Maverick

V.

Stokes.

where his supposed former master resided, and his removal afterwards to the state of Delaware, and carrying on business there for himself, as if he had been a free man, were of themselves presumptive evidence that he must have been manumitted and set at liberty. And the paper produced, it was contended, operated as such to all intents and purposes; for it permitted him to go about his lawful business. This lawful business, it was urged, gave him his permission to go where he pleased, and to pursue what calling or profession he pleased, for a livelihood; and that too without limitation of time, or any accountability to his former owner whatever, which amounted to as complete a manumission as well could be framed; and the very condition annexed to this manumission proved it. For it says, if ever he should return to the state of Maryland, or his wife Peggy Burton, then he should be liable to be taken up, and treated as a slave. These latter words prove most clearly, that it was the intention of his master never to consider him as a slave again, provided he did not return to the state of Maryland. Now admitting this to be the fair construction of this instrument of writing, that he was manumitted and set at liberty by it, was there any law, it was asked, either common or statutory, either in Maryland, or any other of the states, which entailed the condition of slavery on any man for entering into the limits of that state, who was once set at liberty? it was assumed as a position, there was none; and if none such was produced, then the negro in question was clearly entitled to his freedom. The mere condition annexed by the former master, was an arbitrary, as well as a nugatory, act; it was ipso facto void in itself; for by the law of England, which was a part of the common law of this country, a deed of emancipation could not be conditional, between a lord and his villein. Any condition in such a deed, restrictive of liberty on certain conditions, was void and of no effect.

V.

Stokes.

Mr. Cheves, for defendant, argued, that notwithstanding Maverick all that had been urged by the plaintiff's counsel in this case, there was no proof that ever this negro had been manumitted or set at liberty; for although several witnesses had seen him apparently working for himself, and carrying on business as if he had been free, yet it was no proof of freedom, as it was not an uncommon thing for indulgent masters to give their slaves this privilege in the northern states. And as to the paper writing which had been produced, it could fairly be considered as amounting only to a pass from his master or owner, during his pleasure, which the master had a right, at any time, to countermand, when he pleased. He next contended that a master has such an absolute command or right over his slave, that he might make or impose what conditions he pleased upon him, and there was no law to restrain him from doing so; that the paper writing produced, was one of this kind; it gave the negro permission to pass about his business, that is, to work for himself, until he thought proper to withhold this permission. Was there any thing in this pass which restrained him from the exercise of that power when he pleased? None. Then as to the return of the negro; he was in that event to be considered and treated as a slave. Was there any thing in this instrument which prevented him from doing so before, if he thought proper? None. In fact it was only expressive of the master's will and pleasure, to treat him like a slave upon his return; but as long as he kept away, he would not exercise that power. He did however return, and thereby forfeited every kind of pledge which the master might have given him not to treat him as a slave; so that if any kind of conditional contract could be considered as ever having been made between them, it was broken on his part, and he could no longer claim the benefit of it.

The presiding Judge, (GRIMKE,) in charging the jury
Vol. II.

ST

Maverick

T.

Stokes.

told them, that if this paper produced could be considered as a contract between the master and his servant, the condition had been broken by the plaintiff's ward, the servant, and consequently that such contract was dis solved. It therefore followed naturally from the premises, that the plaintiff's ward had failed in proving himself to be a free man, and by the act of assembly of our state, the burthen of the proof is thrown upon the shoulders of the party claiming his emancipation. But the jury, contrary to the opinion of the Judge, found for the plaintiff. This was then a motion for a new trial on the grounds, 1st. That the paper produced in evidence as proof of a manumission of the ward of the plaintiff, was only a pass from a master to his slave.

t

2dly. That if the same could be considered as importing a manumission, the condition on which it had been granted had been violated, and therefore it was void.

This case was again very fully argued on this motion for the new trial, and the same grounds nearly which had been taken on the trial of the issue were again urged on this argument.

The Judges, after fully considering the case, were of opinion, that the writing given in evidence on the trial, and which it was contended amounted to a manumission, was nothing more than a pass or protection against others who might claim the slave, and did not amount to a de reliction of such slave, or a renunciation of the master's right to him.

The temporary indulgence of the master, that his slave should or might work for his own emolument, could not be construed to amount to an emancipation, but only a temporary suspension of his claim to his services.

A new trial was therefore ordered, as the verdict was against law, and the charge of the presiding Judge.

Present, BAY, JOHNSON, TREZEVANT, and BREVARD.

CASES

ARGUED AND DETERMINED

IN THE

CONSTITUTIONAL COURT OF APPEALS,

OF THE

STATE OF SOUTH CAROLINA,

IN THE YEAR 1804.

SON, promo.

ted to a seat on judiciary of the United States.

the supreme

AT a meeting of the legislature, in the month of May, Judge LEE'S appointment 1804, (Mr. Justice JOHNSON having been appointed one of in the room of the Judges of the supreme court of the United States, in Judge JOHNthe room of Judge PATERSON, deceased,) the Hon. THOMAS LEE was elected one of the associate Judges of this state, in the place of Judge JOHNSON, promoted to the supreme judiciary of the United States, and took his seat accordingly.

THOMAS SUMTER against WILLIAM BRACEY.

Columbia, 1804.

TRESPASS to try titles to land in Sumter district. Where mark

Verdict for plaintiff. Motion for a new trial.

ed line trees and corners

can be found,

they ought, in

all cases in making resurveys of land, to govern; but where they cannot be found, then courses and distances are to be resorted to, as the next best guides in surveying.