In re Belt , 1 Park. Cr. 169 ( 1848 )

1848. December 26. And now, at this day, the court overruled the demurrer, adjudging the reply sufficient, and allowed Lee to submit proof in support of his claim.

Thomas Lee, sworn as a witness for the claimant: I reside in Frederick county, Maryland, and have resided there all my life; I am twenty-nine years old, and am nephew of the claimant ; I know Belt perfectly; he is the man now here; I have known him, as long as I can recollect, upon the estate of the claimant in Frederick county, Maryland, where he resides; he was always on that estate when I knew him; he was born the slave of John Lee, and was always in his service; I knew his mother, who was also in his service; she was a slave also; I knew his grandmother; she was on the same estate, and is still living; Belt is about twenty-two years old; I saw him last, until yesterday, in the railroad cars going to Baltimore; Lee was with him; I am pretty well acquainted with the laws of Maryland.

Question by .counsel for claimant. Do those laws authorize slavery?

To this question the counsel for Belt objected, and, after an argument - thereon, the court overruled the objection, and allowed the question to be put.

Answer. Yes, sir, they do.

Question by counsel for claimant. Do you hold slaves under those laws ?

Objected to, and the objection sustained by the court.

Cross-examined by MeXeon, of counsel for Belt. Mr. Lee sold Belt’s mother as a slave; my estate joins that of Mr. Lee; I know the boy was not born in New York, or Pennsylvania, but I was not present at his birth.

Direct examination resumed. Belt went to Baltimore as a house servant.

Question. Did you ever hear of Belt’s claiming to be free from the service of the claimant ?

To this question the counsel for Belt objected, insisting that no previous acts or expressions of Belt could be received as evidence to prove that he was a slave; and, after hearing an argument on the point,

The Gowt overruled the objection, and declared that the contemporaneous acts of the parties might be shown.

Direct examination continued. I never heard of Belt’s claiming to be a free man; I have heard Belt call Mr. Lee master; Belt was always considered, by the other slaves on the estate, as a slave; people resident there are acquainted with each other’s slaves in the neighborhood; Belt was always reputed, in the neighborhood, to be a slave; I have not the slightest doubt as to Belt’s identity.

Cross-examination resumed. Belt is a mulatto.

The counsel for the claimant here offered the laws of Maryland from their statute book, and, objection being made by the counsel for Belt, quoted 1 Greenleaf on Evidence, section 489, and the decisions there quoted being held by the court to be inapplicable to the State of New York, a different rule having been adopted by the courts of that State, the counsel referred to a recent statute of the State of New York, passed April 12,1848, entitled “ An act relative to the proof of the statute and common law of other States and Territories.” “ § 1. Printed volume copies of the statute laws of any other of the United States, or of the Territories thereof, if purporting to be published under the authority of the respective governments, or if commonly admitted and read as evidence in their courts, shall be admitted in all courts of law, and on all other occasions, in this State, as prima fade evidence of such laws.”

The volume offered in evidence was objected to by the counsel for Belt, on the ground that it did not appear that it was published “ by the authority of the government of Maryland,” and there was no evidence that it was a volume commonly admitted and read in their courts. The counsel for the claimant proposed to prove, by a resident of Maryland, that the volume offered was the regularly authorized edition of the laws of the State, and, as such, was recognized and read in their courts, and for this purpose called as a witness, John Lee, the claimant in person, whom he was about to examine, when —

Ja’/y, on behalf of Belt, objected on the ground that Mr. Lee, being directly interested in the result, was utterly incompetent to testify in the matter.

Whitmg: By the new Code no person is excluded by reason of his interest in the event of the action. Mr. Lee is perfectly competent.

Ja/y: If the Code authorizes the claimant, in a matter, involving personal liberty, to testify in his own behalf, it is clearly unconstitutional. Our common law rights in-this matter are part of the Constitution, and are not to be overthrown by an act of the legislature.

The Qowrt: Whatever may be thought of the Code generally, it is not, in this respect, unconstitutional, for it expressly excepts the new rule of evidence from all cases of this kind, and the testimony of-Mr. Lee is inadmissible.

Whitmg: I will then call Mr. Child.

Asa Child, sworn. I have practiced law in Baltimore; in Maryland they have books of law similar to this, which purport to be published by authority, which are read in their courts as evidence; I did not know Jeremiah Hughes; I am not aware that this is a copy of the books thus read; I have seen similar volumes, that are read in the courts of Maryland, that look like this.

By the Court. I cannot say that this volume is a copy of those commonly admitted and read in evidence in their courts.

The testimony on the part of the claimant here closed, and

Child, moved, on the facts as they stood, to dismiss the prisoner.

Ja/y, in support of the motion, was stopped by the court.

Whitmg, on behalf of the claimant, argued at length the following points:

1. That the judge had no jurisdiction to take the boy out of his master’s custody. (Prigg v. Commonwealth of Pennsylvania, 16 Peters; case of Jack, 12 and 14 Wendell’s R.; In re Kirk, 4 N. Y. Legal Observer.)

2. That in a slave State all colored men are presumed to be slaves; and that the same presumption must be allowed here. (Jones v. Van Zandt, 2 M’Lean, 596; 1 Washington’s C. C. R. 308; 2 Wend. 1.)

Edmonds, J., said he would not trouble the counsel for the prisoner to argue the case. There were two points on which his mind was very clear, and which were decisive of the question before him.

In the first place, it was necessary for the claimant to estáblish the fact that the prisoner was bound to service. The evidence was satisfactory that he had been held to service in Maryland, but there was no evidence that under the laws of that State he was lyownd to service.

The plaintiff had failed to prove the laws of Maryland in such a manner as, under the rules of evidence, to permit them to be referred to, and he could not therefore know or hold that by those laws slavery was tolerated in that State. It was true it was generally understood that it was, but upon any such general understanding no judge could act. There must be lawful evidence thereof, and that the claimant had failed to give. He had, therefore, failed to establish the main point in his case, and on which the issue had been joined, namely, that Belt was bound to him in service.

But even if that had been sufficiently proved, there was another reason why the prisoner was entitled to his discharge, and that arose from the manner in which he was detained by his master.

There was only one case in which a fugitive slave could be held by his master, in his personal custody, in this State. That was, under the law of congress, to take him without delay before the proper authorities, in order to obtain the certificate necessary to justify his removal out of the State. This had not been done in this case. Instead of taldng Belt before the Hnited States District Judge, the claimant had removed him to a distance. Instead of taking him there without delay, he had detained him in his own custody for two days. Instead of seeking a judicial determination on his claim to the boy’s services, he had withdrawn him to a distance and concealed him. And now, on his return, he claims, not that he holds him under the act of congress, for the purposes contemplated in that statute, but that he holds him as his slave, because he owes him servitude. If he can do this for two days, he can for two years, of twenty. To justify this would warrant every slaveholder in the nation to hold his slaves in this State as long as he pleases, notwithstanding that slavery was unknown to our laws.

As the claimant, then, avowed that he held the boy not in conformity to the act of congress, but in contravention of it, it was the duty of the judge to order him to be discharged from that custody.

In doing so, however, the judge said he must not be understood as attempting to decide the question whether the boy was actually a slave, or whether his master had, or had not, the right to enforce his return to his service, under the laws of congress. These were questions not before him, and on them he expressed no opinion. He merely intended to decide that the boy was entitled to be discharged from his present restraint, because that restraint was not in conformity to the laws of congress, or the laws of this State.

Whitmg now moved the court to order Belt into the custody of proper officers, to be conveyed before a judge of the United States Court, that his master might claim the certificate authorized by the act of congress.

Edmonds, J.: The boy is discharged, and I mu§t decline your application. My official duty does not require it, and if it is asked on any other grounds, it would not be a proceeding to my taste.