Baptiste v. De Volunbrun , 5 H. & J. 86 ( 1820 )

Buchanan, J.

delivered the Qpmiou of the court.

The claim of the appellants to freedom is founded on the first section of the act of assembly of 1796, ch. 67, by which it is enacted, “that it shall not be lawful 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 object of the law was to prevent an increase of the number of slaves in the state by voluntary importation; and it cannot be presumed, that the legislature contemplated the extreme case of fugitives for their lives from the horrid scenes of slaughter in St. Domingo, during the servile wars in that island; or if they were thought of, they were intended to be embraced by the fourth section, which contains a saving of the “rights of any person or persons travelling, or sojourning, with any slave or slaves, within this state. ” The mere bringing slaves into the state is manifestly not prohibited. There must be something else; they must be brought “for sale or to reside. ” The animus quo fixes the character of the act; and if they are not imported or brought into the state for either of those purposes, it is neither within the letter, nor the spirit of the law. The intention must accompany the act; and though, where a man voluntarily brings slaves into the state, the presumption of law is against him—yet the law will never intend, that he who is forced to fly from his country, by causes not within his control, and with his slaves seeks refuge here, brings them either for sale or to reside. A man arriving here, under such circumstances, must be supposed to come without any purpose beyond that of saving himself and his property, and the presumption is decidedly against his bringing his slaves with any intention to violate the laws of the state.

The doctrine of necessity is well known to the law, and not now, for the first time, set up. The defendant in the case before us was driven to this country from St. Domingo by an insurrection of the negroes, and brought with her the petitioners, as her slaves; she was compelled to come by necessity, a vis major, which she could not resist, and that necessity is her protection. But it is said, that she first arrived at New York, and though she may have been driven by necessity from St. Domingo, the same necessity did not pursue her, after she reached New York, where she might have remained in safety, and that her coming into this state was a voluntary act. The answer to that argument is, that it appears, from the case stated, that she moved from New York to Baltimore, in consequence of the climate of the former being injurious to her health. She therefore had no choice, between becoming a sacrifice to the climate of New York, and going to some other place better suited to her constitution. It is, moreover, admitted, that she “has constantly and uniformly declared her intention to return to her own country whenever circumstances will permit her to do so with safety,” and for that reason has never become-a citizen either of this state, or any other of the United States. These declarations must betaken as a part of the res gesta, and are evidence of her intention, and with the fact, that she has never become a citizen, are conclusive. She is a stranger in the country —an alien, without a fixed home—a sojourner wherever she goes, awaiting some favourable event, that may invite her back to the land from whence she has been driven. Under such circumstances, we think that her coming into this state from New York cannot affect her rights, or deprive her of any privileges to which she would have been entitled if she had come immediately from St. Domingo to Baltimore.

This cannot well be distinguished from the case of De Fontaine vs. De Fontaine, decided in this court at the June term 1818. In that case, M. and Madame De Fontaine were driven from St. Domingo by an insurrection of the negroes. Ho fled to the Island of Cuba with his two slaves, the petitioners, and she to Baltimore with her infant son. In the year 1805, he sent the two slaves to his wife and son in Baltimore. In 1808, Madame De Fontaine returned to St. Domingo, leaving her son, and the two slaves, whom she put into the hands of Bonard, under an agreement that they should be considered as a pledge ■for the return of a sum of money that he had advanced to her, and which she did remit. After she had gone, the negroes filed their petition for freedom in the court of oyer and terminer, &c. in Baltimore, where it was adjudged, that they were not entitled to their freedom; and on an appeal to this court, the judgment was affirmed.

In the course of his argument, the counsel for the appellants read, from Bains’s history of the wars of the French revolution, an extract of a decree of the National Convention of the 25th of April, in the second year of the French republic, “which declares, that negro slavery,'in all the colonies, is abolished,” and earnestly contended, that as that decree was passed before the defendant was driven from St. Domingo, the petitioners were thereby liberated, and no longer remained the slaves of their former owner. But as foreign laws are facts, which, like other facts, must be proved before they can be received as evidence in courts of justice, the decree of the National Convention must be considered as not in the case, not being proved in any other way than by the book from which it was read, and no attempt to obtain an authentication of it appearing to have been made. It is not, therefore, necessary to inquire, what would be the effect of that decree, if it was properly before us.

JUDGMENT AFFIRMED{ ^(a)m * '

(a) The case of De Fontaine et al. vs. De Fontaine, by Bonard his Guardian, in this court at June term 181b, and releí red to in the preceding case, was an Appeal from the court of •yer and terminer, &c. for Baltimore county. It was a petition for freedom preferred by the appellants, and the case was submitted to the coart below upon this statement of facts, viz.

That M and Madame De Fontaine, the lawful parents of Faustin De Fontaine, the defendant, a minor, were driven from their estate in the island of St Domingo, by an insurrection of the negroes; and being in different parts of the island at the moment of the insurrection, the husband fled to St. Jago, in the island of Cuba, carrying with him his two slaves, the piesent petitioners, whilst the wife fled to Baltimore with their only child and heir, the pres'ent'defendant. That towards the latter end of the year 1805, De Fontaine, the father, in consequence of the persecution of the French inhabitants in the island of Cuba, found himself compelled to leave that country, and being a military man, joined the French army under Pcrrarid, at St. Domingo, ill hopes of recoveiing his former possessions by arms. That at his departure, it not being possible to take them with him, he shipped the petitioners to his wife and child, in Baltimore, where they arrived in 1805, and have since continued. That Madame De Fontaine was frequently desirous of leaving this state to join her husband, and at one period was on the point of doing so, with her child and the petitioners, but learnt at that moment that St Domingo was besieged by the blacks, and that her husband had fallen a sacrifice to the war. " That, at length, in November 1808, finding herself and family without the means of existence, she left this place for St. Domingo, in hopes of collect ng the little property her husband might have died possessed of at that place, where she now resides, That at her departure, not finding herself possessed of a sufficiency to pay her son’s, and the petitioners’ passage, and that by the death of her husband she had lost all hope of recovering his fortune for her son, she determined on putting him to school thiee or four years, and then binding him to a trade.' That for the purpose of accomplishing this object, as her only mean's, she left the petitioners, who are the defendant’s property, in care of a certain Mr. Bonard, her agent, in order that they might, by their services, afford him the conveniences of washing and clothing, and by their wages suppoit their other expenses. That Bonard, ip pursuance of Mrs. De Fontaine's direction, placed the defendant during three or four years at school, both in Philadelphia road Baltimore, and in December 181 i, bound him an apprentice for three years, (at the end of which period he will be ol age,j to Mr Glassgoto, coidwa-.ner of Baltimore, who in consideration of the period when he was bound, it being during the war, refused taking him, without a fee of fifly dollars, and Bonard paying all expenses, except his shoes and board, which have been paid out of the wages of the petitioners. That Bonard has the instructions of the mother to ship her child and Ihe petitioners to her at St. Domingo, as soon as her son’s apprenticeship is terminated, or sooner if his time can be purchased. That Madarné’ De Fontaine, not being able to pay the debts she bad contracted in Baltimore. or the price of her passage, Bonard, from motives of humanity, advanced her money sufficient for the purpose; and that Bonard,-expressing some apprehension for the payment of his money, Madame De Fontaine agieed that the petitioners should be considered as a pledge for the remission of his money to him from St. Domingo; which has been done. Thai. Faaslin De Fontame, the defendant, is the only legitimate heir of his parents, and was alone entitled to the petitioners at'the death of his parents; provided, they should not Be considered by this court as emancipated by the laws of this state: Upon this statement, judgment was rendered forthe defendant in the court below, and the case was brought by appeal to this court. It was argued’ before Buchanan, Earle, JoaiisoK, Martin and Dorset, J by Raymond, for the appellants, and by Martin (attorney general) for the appellee, who cited De Kerlegand vs. Negro Hector, 3 Harr. &. M’Hen. 185. The Court or Appeals affirmed the judgment gf the court below. ■ jo..