Cross v. Black , 9 G. & J. 198 ( 1837 )

Chambers, Judge,

delivered the opinion of the court.

The first .exception presents the question, whether the declarations of the appellee were properly admitted in evidence. We think they were. One of the acknowledged exceptions to the rule which prohibits a party from producing his own declarations in his favour, is, where such declarations are necessary in explanation of an act, which takes its character from the design and intention of the party who does it. The declarations made at a time, when occasioned by no perceptible motives of interest, like other circumstances surrounding an act, are in such instances- considered''as part of the res gestee. Here the act was the removal of the appellee; the act of breaking up-, and going from his former residence to another, which he designed to occupy. There are no facts disclosed-on the record, nor have any such been suggested, which could possess the mind of the appellee at that time with the belief, that his interest was involved in declaring his removal to be with intention to settle in Missouri.

It is said, these declarations did not tend to affirm or deny any fact involved in the issue ; but by the very language of the petition itself, the freedom of the appellants is claimed, amongst' other reasons, on the ground, that the appellee removed with the petitioners to the state of Ohio, and became a resident, or with the intention of becoming a resident and citizen thereof.

Again, it is said, the declarations were made, or some of them, long anterior to the period when the appellee left the state of Maryland; but it is expressly alleged in the exception, that all the declarations offered, were made while the appellee was making his preparations for his removal. It is further urged, that to admit this testimony, would be to contradict the rule of evidence, which denies to a party the right to contradict his declarations, when they have been made the foundation upon which an act is done, or a liability or expenditure incurred by another. We do not think in this case, the facts justify the application of that well established rule of evidence. The petitioners were the slaves of the appellee before his removal by the concession of their counsel ; and if it could be shewn, that they had been influenced to do any act, or consent to its being done, in consequence of the declarations of their owner, (which however does not appear to have been the case,) we should not consider the rule as applicable to parties standing in the relation of master and slave.

The second exception raises the question; what is the true construction of the act of 1831, chapter 323, in reference to negro slaves, under the circumstances which exist in this case ?

We cannot agree with the appellee’s counsel, that there was not evidence in the cause tending to prove the facts assumed by the appellants’ motion. The voluntary return of the appellee into this state with his servants, and his remaining here in the situation and under the circumstances proved at the trial, were quite sufficient to authorize the petitioners to introduce into their statement, the fact of his return to reside, as one, which the jury might find, and of course, would forbid the court the right to reject the prayer, as not being justified by any thing offered in evidence.

We do not deem it necessary to decide, how far the peculiar point to which the instruction was directed, to wit, whether under the facts assumed, the appellee “was not entitled to hold the petitioners in bondage” would have excused the court from gratifying the motion. As a general rule it is certainly true, that the issue in a petition for freedom, being freedom Del non, the verdict must be adverse to the petitioner, and consequently in favour of the defendant, unless a case of freedom is made out, and the title of the defendant in the petitioner, need not be sustained by proof, if the evidence shows that the petitioner is not free.

We prefer to meet the true question involved in the case, which is, whether a citizen of Maryland intending to break up his establishment, and leaving this state with the avowed design of becoming a resident of another state, and actually going out of this state, in pursuance of such design, may, before he reaches the point of his intended destination change his purpose, and return into Maryland with his slaves who had accompanied him, without violating the act of 1831, chapter 323. We acquiesce in the opinions expressed by the appellant’s counsel, that the policy which directed the system of laws, of which this is a part, was designed, not only to avoid the introduction of slaves who had not previously been domesticated in the state, but also to forbid the return of those, who having once been domesticated in the state had ceased to be so, and had been removed to some other place. ' . ' -

The difficulty consists, not in ascertaining the general rule of policy, or the "general rule of the law, by which the legislature has announced its purpose to pursue it, but in the application of that rule to a particular state of facts.

The law is expressed in terms the. most universal; in the first paragraph of the sixth section, copying verbatim the language of the act of 1796, chapter 67, it shall not be lawful to import or bring into this state by la'nd or by water, any negro, mulatto, or other slave, for sale, or to reside within this state.

The subsequent provision excepts from this general clause, the case of non resident owners, who employ their slaves on the islands in the.Potomac river, and also the case of persons holding lands both in this state' and in another state within the distance of ten miles, &c.

The act is penal in its character, and subjects the party-offending against its provisions to indictment.

A literal interpretation will include this case, as doubtless the petitioners were “ brought ” into this state in one sense of the term; and it therefore becomes necessary to consider, whether with a due regard to the existing mischiefs to be remedied, the means of redress designed, and the actual consequences attending a literal interpretation of this act, it will effect the purposes of the legislature to construe it according to its strict letter.

The evil complained of was not the objectionable exercise of doubtful rights of property by masters, in reference to slaves permanently situated in the state. From our earliest history, masters had been accustomed to take or send their slaves out of the state for purposes obviously temporary. The legislature had secured to citizens of other states, the privilege of having their slaves here while “travelling or sojourning,” and the most liberal judicial construction has been given to these provisions. Baptiste vs. De Volunbrun, 5 Har. and John. 86, and the case of De Fontaine vs. De Fontaine, there cited. It could not then be the design of this statute, or the older statute, from which this portion of it is copied, to deprive a citizen of Maryland of the privilege elsewhere, which every citizen of every other portion of the Union can enjoy in this state. Yet if the letter of the act be adhered to, it will effectually produce this result; in as much as in every such instance, where a slave has been carried out of the state by his master to travel or to sojourn, his being again “brought” into the state, if for sale or to reside, is a criminal act, involving a forfeiture of the property, and if the master can neither sell him nor require his services as a resident servant, he is useless and expensive.

Against such a construction we may well oppose the universal opinion and practice, during the whole period embraced by this system of legislation, commencing in 1783. We know that our citizens have constantly taken their slaves with them, when visiting other states, and have returned with them into Maryland, have sent, them out of the state for a mere temporary purpose, without the presence of their masters, and have had them to return again, and no doubt has been expressed, as to the power to do so without hazard to their title in such slaves.

The act of 1831 did not restrict in any manner the acknowledged rights of the master, in reference to slaves located in the state; nor did it design to embarrass him with conditions, which according to the familiar habits of our citizens, would refuse him the services of his slave in duties of everyday’s occurrence; consistently with such a literal application of this language,-it would be impossible for our citizens to travel by the regularly established mail roads, from one portion of the state to another, without violating the law, and forfeiting his property, if he should insist on having his slaves to minister in their accustomed offices to himself and his family, because, as is in some instances the fact, such a journey would be in part over the territory of another state, and yet the same indulgence is expressly secured to the master with slaves from any other state.

The necessity for such exceptions to the strict letter of the provision is manifest. The counsel admit it. The principle of the exception, we think, governs the case before us.

There must be a termination in the relative duties of protection and obedience, which had existed between the state and the resident slave — not a design or purpose only to terminate these relations, but an actual consummation of such purpose by the active agency, or positive assent of the owner; a purpose to remove them out of the state permanently, and place them elsewhere, and this being consummated, the master then assumes the attitude of the owner of non-resident slaves. The case of Bland and Beverly, 9 GUI and John, has been referred to, as establishing a doctrine differing from that we have declared. We think it quite in accordance with all we have said. That case went upon the ground that the owner of the slave assented to his leaving the state for a permanent purpose, and thereby placed the slave in the attitude of a non-resident, the assent to his leaving the state being equivalent to his being carried out by his owner, and consummating the design of a permanent removal. The ease made by the petitioners in this second exception, does not consummate the purpose of a permanent abandonment of the state. The numerous mischiefs suggested in argument would inevitably result, if the master could he considered as having lost his claim, to be considered a citizen of Maryland before he had become a resident of another place, placing him at the mercy of all who might officiously or malevolently oppose his just claims to the quiet enjoyment of liis property, and denying him the character of a citizen of any one of the states, in which character alone, he could invoke the aid of the laws, and legal tribunals of that government, which is common to all the states.

The itinerant and unsettled condition of the master will give character to the condition of his slaves. They are to he considered as attached to his person; dependent on his movements; and their will is merged in his. Their return with him, therefore, under the circumstances we have been considering, must be regarded, like his, as the termination of a temporary absence, which will not constitute an importation within the meaning of the acts of assembly.

These views lead us to concur with the opinion expressed in the second exception*

JUDGMENT AFFIRMED.