Smith, F. W. C. v. Smith , 13 La. 441 ( 1839 )

Martin, J.,

delivered the opinion of the court.

The plaintiff is appellant from a judgment which rejects her claim to her freedom.

She admits she was once the slave of the defendant, who took her to France, and with whom she remained for three or f°ur mont-bs, after which she was sent back to this state.

This case cannot be distinguished from that of Marie Louise, f. w. c., vs. Marot et al., 9 Louisiana Reports, 473. In both cases it was proven that “ there is no slavery permitted jn prance • that, as soon as a slave lands on the French soil, he is free by the mere iact.

The judge of the Parish Court has admitted, that if the (]ecision of this court, in the case of Marie Louise, be correct, ... , it affords a legitimate rule by which the present case is to be determined; but he contends that a single decision of this court; c^oes not prevent the re-examination of the principle recognized when it comes up the second time, and is presented to the consideration of the court.

The case of Marie Louise is not the first in which the Supreme Court of this state has been called upon to revise the judgment of an inferior court, in relation to the right to the freedom of a slave, in consequence of his having been carried by a former master into a country the laws of which do not tolerate slavery. About fifteen years ago, the court of the third judicial district having recognized the right to freedom of a slave, carried from Kentucky into the state of Ohio by her former owner, the person who claimed her as his property deeming himself aggrieved, sought relief by appeal to this court. See Lunsford vs. Coquillon, 2 Martin, N. S., 401.

That case received an attentive consideration, and the judgment of the District Court was affirmed. The question was not res nova in the jurisprudence of these states; the plaintiff relied on a decision of the Court of Appeals of the state of Kentucky, which fully supported her claim.

The Supreme Court will not consider one decision alone as finally settling the jurisprudence on any question of law, which is not settled by positive legislation.

Ten years after that decision, this court expressed the opinion, in the case of Louis, f. m. c., vs. Cabarrus et al., 7 Louisiana Reports, 170, that the judge a quo erred in refusing to charge the jury, “that proof of the residence of the plaintiff in the state of Ohio during the space of two or three years, unconnected with any other proof, was insufficient in law to establish freedom.” A negative pregnant with the affirmative, that such a residence, connected with other proof, to wit, that it was with the consent, and agreeably to the will of the master, would entitle such slave to his freedom.

In the same case, the judge having charged the jury, “ that the consent of the owner that the slave should go into the state of Ohio and perform labor was insufficient to entitle him to his freedom,” this court was of opinion that the law was too loosely expressed and indefinitely stated ; and that “ the consent of the master that the slave should go and perform work and labor in Ohio, does not of itself free the slave, though this may be effected by the slave's going there under this permission

We agree with our learned brother in the Parish Court, that “ more than one decision of the supreme judicial tribunal is required to settle the jurisprudence on any given point or question of lawand accordingly, as there has been three decisions of this court on the question on which he differs from us, we might consider the law as settled by these repeated decisions, in which all the members of the court concurred, and which were in accordance with three judgments of the District Courts; nevertheless, we have attended to the new considerations which have been submitted to us. The counsel for the defendant and appellee contends, that the legislature has provided two modes of emancipation, to wit, that of slaves having attained the age of thirty years and upwards (Louisiana Code, article 185, et seq.), and of slaves under that age (1 Moreau's Digest, 456), and.that no emancipation can take place in any other manner.

When owners go out of the state with their slaves, and af-terwards emancipate them, they must do so according to the laws of the place where the emancipation takes place.

This is certainly true of emancipation in the-state; but the legislature has recognized the right of owners to emancipate their slaves in other states. See. Session Acts of 1830, sec. 16, p. 94.

When owners going out of the state with their slaves, afterwards emancipate them, they must do so, not according to the laws of Louisiana, but according to the laws of the country where the emancipation takes place. It has been further urged, that owners of slaves cannot evade the laws of this state regulating emancipation by taking them out of the state, fraudulently and collusively, with the view of emancipating them, when the law forbids it, viz., slaves of bad character, or to avoid giving bond with security required by law. To this the answer is, that if the emancipation, in such a case, is to be declared null and void, it cannot be so on the application of a party to the collusion and fraud.

It has been said that the plaintiff cannot be heard, because the law requires emancipated slaves to withdraw from the state. To this it may be answered, that the object of the suit is to procure the means of complying with the law, by removing the obstacle which the defendant opposes to .its execution ; that the obligation to remove from the state has not the effect of an outlawry; and that the act of 1830, already cited, authorizes slaves removed from this state, and emancipated in another state of the Union, to return. It is true, the plaintiff in this case obtained her emancipation in France, and does not therefore come within the letter of that act. It is said she comes within the spirit; for the reason why slaves emancipated in the other states are permitted to return is, that they have their relations, connections and friends here, whom it would be cruel to 'prevent them from rejoining.

The parish judge imagines he has discovered a distinct feature in the present case, from that of Marie Louise, who was that of a statu libera at the time she left Louisiana, while the present plaintiff was a slave for life at her departure. A statu libera is a slave until the moment she becomes free, to all intents and purposes, with the exceptions introduced by the code, none of which were invoked in that case.

It does not appear to us that any thing authorized the Parish Court to decide this case on other principles than those settled by our jurisprudence in similar cases.

It is, therefore, ordered,' adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed; and that the plaintiff be declared a free woman, and that the defendant be for ever enjoined and prohibited from disturbing her in the enjoyment of her freedom, the latter paying costs in both courts.