Davis v. Jacquin & Pomerait , 5 H. & J. 100 ( 1820 )

Johnson, J.

The general court, in the case of Lowe vs. Gist, decided, that a female, at the age of 18 years, could not execute a hill of sale of her slaves ^(a).

Tiie General Court affirmed the judgment of the Counfcv Court.

A slave carried at to"níafby'hia owner residing; m andemployed m working; athis stone quar17, theseverai^pejnihcMdS^oone year, such slave is Som^uiidcr8^!^ laws qí Virginia»

Dorsey, J. cited Stewart vs. Oakes, deckled in this court under the laws of Virginia^(b).

The opinion of the court was delivered by

Dorsey, J.

[After recapitulating the facts, he proceeded:]

The court below gave the two following hypothetical directions to the jury, that if they should be of opinion, that Miss Davidson was under twenty-one years of age, and a so* journer in the family of Pinkney, (her father-in-law,) in Pennsylvania, and sent the petitioner back to this state within six months from the time of carrying him to Pennsylvania, they ought to find for the defendants; or if they should be of opinion that Pinkney, without the consent or authority of Miss Davidson, and during her infancy, carried the petitioner to Pennsylvania, and sent him hack to this state within six months thereafter, they ought to find a verdict for the defendants.

By referring to the statutes of Pennsylvania, to wit, the tenth section of the act, entitled, “An act for the gradual abolition of slavery,” passed in the year 1810, eh. 870, and the second section of the act, entitled. “An act to explain and amend an act, entitled, An act for the gradual abolition of slavery,” passed in the year 1788, eh. 1334, it will be found, that the legislature of that state have, by express words declared, that the domestic slaves of persons, sojourning in that state, shall not be emancipated from bondage, provided such slaves he not alienated or sold to any inhabitant of that state, nor retained in the state longer than six months. Whether Miss Davidson was a sojourner in Pennsylvania during the time the petitioner remained there, and if she was, whether the petitioner was sent back to this state within six months after being carried into Pennsylvania, were facts proper for the consideration of the jury, and were by the court referred to their determination. And if such were the facts, the petitioner can have no claim, under the laws of Pennsylvania, to his freedom. And as the court below did so declare, they did not err in the direction first given by them to the jury.

Let us now examine whether the other opinion was erroneous.

The seventh section of the act of assembly of this state, entitled, “An act relating to negrees, and to repeal the acts of assembly therein mentioned,” passed in the year 17DG, ch. 67, declares, “that if any negro, or other slave, hath been, or may hereafter be, carried out of this state by an executor, administrator or guardian, or by any other person or persons, during the infancy, or without the consent'-br authority of the real ’ owher'.or proprietor of such negro, or other slave, it shall and may be lawful fpr suck, proprietor or owner, at any time thereafter, to bring said negro, or other slave, into this state again, and have and enjoy the said negro or other slave as his property.” This act, therefore, most explicitly declares, that the right of an infant, in Ids negro slave, shall not be divested by his being- carried out of the state by any person whatever. This being the law, it would be useless to consider, what would be the operation of the laws of Pennsylvania in such a case. If the legislative enactments of this state and another slate should differ, it cannot be made a question here which shall prevail. Where there is no constitutional barrier, we are bound to observe and enforce the statutory provisions of our own state. What would have been the legal effect of a judgment rendered in Pennsylvania, declaring the petitioner to be free, (if such a judgment had been rendered,; the court do not mean to decide.

It has been urged by the appellant’s counsel, that Miss Davidson was not an infant at the time the petitioner was carried to Carlisle by Pinkney, she then being seventeen years of age, and the legal infancy of females ceasing at the age of sixteen. That the minority of females did not cease at that age, under the principles of the common law, is a proposition too clear for inquiry. But it is said, that the act of 1798, ch. 101, has made an alteration in the common law; and the appellant, in support of this position, has relied on that part of the act, which declares that the orphans court shall appoint guardians to females until the age of sixteen, or marriage; and that on the female attaining such age, the guardian shall deliver up to her all the property of his ward, including bonds, and other securities. That this act has not, in terms, declared, that the infancy of females shall cease at the age of sixteen, will be admitted; and it is difficult to conceive why the legislature, if they intended to destroy this important feature of the common law, did not pointedly declare their intention, instead of leaving it to be inferred by reasoning. That such was not their intention, with reference to all females, is most evident, because they refer to, and acknowledge the validity of testamentary guardianships created under the statute of 12 C^arlg0.\,.ch. 24; and it is well known that parents under¿&is>statuíe ipg,j appoint'guardias .to.' their female childrens until theyátr'rive át the age óf liventy-one years. It may be asked, why make this distinction? If the common law principle operated unkindly on the female sex, why emancipate a part of them from its disabilities, and leave the rest to suffer under its uncourteous restraints? The object of the law was to enable an infant female, at the age of sixteen, to receive from her guardian, and take into her possession, her real and personal estate. So far the law conferred on her a now capacity; but this capacity does not destroy the state of legal minority, because it is consistent with if. While the law gives to her the power of receiving the possession of her property, it is-silent, as to the jus dis ponendi, except in the instance of devising her real estate, which she is empowered to do at the age of eighteen. If her infancy ceased at sixteen years, why, I pray, withhold from her the power of disposing of her lands, by will before eighteen? If she ceases to be an infant at sixteen, she may immediately thereafter-convey her lands by deed; and thus the strange inconsistency is introduced, that a female has legal capacity to convpy her land by deed, when she is sixteen years of age, hut cannot devise them before she arrives at the age of eighteen. Neither is the provision of the act, which incapacitates persons under the age of eighteen from acting as administrator, consistent with the notion of the appellant’s,, counsel.

It has been further urged, that infants are hound to sue, by guardian, and as the guardianship ceases at sixteen, their infancy must cease at the same time, or they are deprived of the capacity of suing. This argument is founded on a twofold error; first, by supposing that an infant can only sue by guardian; and secondly, that the guardian of the person must be the guardian ad litem. By the common law, infants were obliged to sue by guardian; but they were enabled by the statute of Westminster the 2d. to sue by prochein amy; and the guardians of the person, and guardians ad litem, are essentially different in their creation and powers. • The power of appointing the latter is incident to all courts, and they are admitted, by the court for the particular suit, on the infant’s' personal appearance, without inquiring whether the person admitted' is the guardian of the person of the plaintiff. Coke LilL tit. Soccage, §. J23, Note 16.

'll 6w far the rights of Miss 'Davidson, if she had been adult, would have been affected by the acts of her father-in-law, the court do not mean to decide.

The court are of opinion, that there is no error in the •second opinion delivered by,the court below.

JUDGMENT AFFIRMED.

(a) Lowe vs. Gist, General Court, May term 1798. This case tan*e UP 0T1 a xvr'lt ol en’or (o Fritz ce-George9s county court, and was an action of replevin, bi ought by the plaintiff in error, ior Ú. ne£ro slave named Charles The defendant pleaded non cepit and property, and issues Were joinfcd. At the trial the plaintiff offered in evidence a deed of indenture, dated the 23d of August 1774* executed by Harry, Ann, and Mary Ann Lowe, to Enoch Magruder and Michael Lowe, and duly acknowledged and recorded, whereby, in consideration that Magruder and Lowe had engaged and undertaken to pay and satisly to several creditors of Harry, Ann and Mary Ann home, and in consideration of five shillings current money, they, in order to secure and save harmless and keep indemnified Magruder and Lowe, conveyed and transferred to them certain parcels of land, and several negro slaves, and amongst others the negro slave mentioned in the declaration in this cause; covenanting, that Magruder and Lowe, their heirs, &C might er^-rv into and take posséssion ofthe lands and negroes, ,or any of them, and the same, or any oflhcm, to sell and dispose of at private or public sale, and when sold, convey and transfer to the purchaser, &.c. It was admitted by the parties, that the negro slave named Charles was, at the execution ofthe indenture, the property of Mary Ann Lowe, and that alter the execution of the said indenture she intermarried with John Gist, the defendant; and that she was, at the time of the execution of the said indenture, under the age of twenty one years, and above the age of sixteen years. The plaintiff then prayed the direction of the court to the jury, that if the said Mary Ann Lowe, at the time of the .execution of the said indenture, was above the age of sixteen years, although she was under the age of twenty-one years, that the said indenture was good arid available in law to pass the said negro slave named Charles, and that said indenture could not be avoid» ed by her, or those claiming under her, on account of the nonage aforesaid. Butthe county court, [Stone, Ch. J.] refused to give this direction; but directed the jury, that ifthey were ofopiuion that Mary Ann Lowe, at the time of the execution of the indenture was under the age of twenty orle years, and above the age of sixteen years, that then the indenture, in point of law, was voidable by her, and that she, after her full age, and before her intermarriage, and that she and her husband after her intermarriage, might legally avoid it, if it had not been confirmed by her alter her coming of age, or by her husband after their intermarriage, To this opinion the plaintiff excepted; and the verdict and judgment being for the defendant, the present wiit of error was brought by the plaintiff*

(b) Stewart vs. Oakes. Court of Appeals, December Term, 3813. It was an appeal from the Court of Oyer and Terminer, &c. for Baltimore county,from a judgment rendered in that court on a petition preferred by the present appellee, claiming his free- , Í rr, , dom because of his having been removed by the delendant, (the appellant,) from this state into the state of Virginia, and thence impoited into this state. There was a verdict lor the petitioner, subject to the opinion of the court on the following case, viz. It is admitted that negro llobert, the petitioner, was the slave of the defendant, who is a citizen of this state, and 1 esidedjherein pri- or to the 10tb oF January 1783, and has res ded Lhere ever since* That he owns a stone quarry in the state of Virginia, wheie he has been in the habit ot taking the petitioner, for the pin pose of working in the quarry, for a number of years past, four or live weeks in the spring of every year, making the time of the petitioner’s being in Virginia, in the whole, upwards of one year The defendant never resided in Virginia, exceptfor the purpose of quarryingstones as aforesaid, and always returned to this stale, (wher<? his family constantly remained,) as soon as he got asniFicient number of stones to supply his manufactory at Baliimoi e. That the record annexed, contains a true and just copy of the laws of Vivginia relative to slaves; and that the petitioner neve:* applied to any court of record or competent tribunal in Virginia, for the purpose of obtaining his fieedom under the laws oí that state. The petitioner was always brought back to this state by the defendant without being compelled thereto by any force or violence; and that the several tunes her ein befor e mentioned, in which the petitioner remained in Virginia, were subsequent to the passage oF the above mentioned law of Virginia. The petitioner was taken by the defendant in the month of March 1801-, to said quarry, for the pu rpose of quarrying, and remained there until the month of August following, when he returned to this state, where he continued about two weeks, and again returned to Virginia, and remained working at the qua»ry until November following, when he again came back lothis state.

By the law of Virginia, referred to in the above statement, passed on the 17th oí December 1792, ch 103, s. 2, “Slaves which shall hereafter 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.” By the fourth section, it is provided, “that nothing in this act contained shall be construed to extend to travellers, and others, making a transient stay, and bringing slaves for necessary attendance, and carrying them out again.”

The Court of Oyer and Terminer,&c. [Dorsey, Ch J.] gave judgment cn the case stated for the petitioner. From which the defendant appealed to this court.

The case was argued here before Ch ase, Ch. J Buchanan, Nicholson, Earle and Johnson, J. by Furviance for the appellant, and T. Buchanan for the appeilee.

The Court of Appeals affirmed thejudgmenfc of the court of oyer and terminer, &c.‘ *'