Jeremiah Townshend and others, vs. Samuel Townshend and others, 5 Md. 287

Mason, J., delivered the opinion of this court. If anyone of the several objections which have been urged by the appellants’ counsel, to the regularity and validity of this proceeding, be tenable, it will constitute a sufficient ground for a dismissal of the bill. The proper mode under our laws, by which to try the title of a negro to his freedom, is by petition filed in the circuit eourt. This right is to be asserted subject to certain restrictions and privileges, which neither party, nor no tribunal has the power to disregard.

By the act of 1796, ch. 67, one of those privileges secured to both parties, consists in the right of peremptory challenge. It is clear therefore, that any tribunal that would attempt to adjudicate upon the rights of an alleged slave, (except under some other specific proceeding pointed out by statute,) in a manner which would deprive him of this right of challenge, would act in violation of law, and its proceedings be therefore irregular and invalid. Such we regard the proceeding in this instance.

The title of tLe negroes to their freedom is the question to be determined in this controversy, and yet this is proposed to be decided, in a manner which precludes the exercise of the right of challenge secured to the negro. The suggestion, that issues might be framed and sent from the court of chancery to a eourt of law, for trial before a jury, where the right of challenge might be exercised, will not avail, because it makes an absolute right of the party, depend, in a measure, upon the discretion or grace of the court of chancery.

Nor is the case varied by the application, contained in the bill for issues to try the question of the sanity of the grantor, in the several deeds of manumission in question. If this application were granted, it would only secure the right of challenge but once, while there are a number of negroes, whose freedom depends upon the result, all of whom, individually and separately, are entitled to this right of challenge. This question seems to be put to rest by principles announced in the case of Negro Franklin vs. Waters, 8 Gill, 322.

Judge Chambers, in delivering the opinion of the court, on page 330, says, in regard to the question of freedom, vet non, that “in our State, the mode in which this question is to be tried, is not only prescribed by statute, but there are peculiarities in regard to it, which cannot be gratified but by an observance of the mode indicated. It must he by petition in a court particularly designated, and the right of peremptory challenge is expressly secured to both master and slave.

To deny to- either party the privilege secured by the statute, if the tidal be by petition, would be an admitted violation of the plain meaning and express words of the law. Is it less so to permit one of the parties to deprive the other of this privilege, by using a different form of action?” See also the case of Negro Peters and others, vs. Van Lear, 4 Gill, 249. We cannot perceive that the views we have herein expressed, conñiet with the principles announced in the case of Key vs. Davis, 1 Md. Rep., 32.

The question of freedom involved in this controversy, our statute requires,, shall be determined in a particular tribunal and in a particular mode of proceeding, and it matters not upon what circumstance that question depends, whether upon the sanity or insanity of the grantor in the deed of manumission, it must nevertheless be referred to the same tribunal for determination- and submitted to the same course of proceeding. If any- statute had pointed out how the matters in controversy in the case of Key vs.

Davis, were to be determined, we should have had as little difficulty in disposing of that case as we have had in settling this. We do not deem it necessary to touch the other grounds of objection urged against the validity of this proceeding. Decree reversed and bill dismissed with costs to the appellants in both courts.