Bland and Woolfolk vs. Negro Beverly Dowling, 9 G. & J. 19

Archer, Judge, delivered the opinion of the court. Looking at the state of slavery as it exists in this state, and the relations between the slave and his master growing out of such condition, we cannot maintain the principle that a slave can enter into any binding contract with his master, or that he could appear as a suiter in any of our courts of justice, legal or equitable, to enforce any alleged contract. The acts of assembly cited by the counsel for the petitioner do not, we think”, give any countenance to the idea.

It is apparent from the act of 1715, ch. 44, sec. 11, that anterior to the passage of that law, slaves had been encouraged by traders to purloin the goods of their masters and others, by receiving from them such goods, and turning such trade to their advantage. It was to strike at this evil the law was passed.

It did not recognize certainly any right existing in slaves to'deal or barter, for the penalty inflicted on the trader shows directly the reverse, and concedes that the trade, barter, and commerce, was of goods that had been purloined, or conveyed away from some rightful owner other than the slave, there being in case of conviction a forfeiture of the goods to the true owner.

The leave or license spoken of in this section, if it apply to slaves, gives to them no power to contract, but merely furnishes an exemption from punishment in the specified ease; and might perhaps be considered a relinquishment to the receiver of the rights of the master in the goods so conveyed away, and constituted a very proper exception from the general provisions of the

section — such a case not constituting one of the • mischiefs intended, or requiring remedy. The petitioner in this branch of the inquiry, can derive no support from, the act of 1832, ch. 296, for although the ■word “agreement” is used, it is followed by expressions which we think'indicate the sense of the legislature, that they did not mean to use the term contract, in its technical and legal sense. Else why should they have required a manumission, if the agreement had been treated by them as valid, and binding, and as giving freedom? Why should they not have given the same fruits as they would, when followed out by a manumission? Looking at the whole

section together, we think the term “ understanding ” was used to qualify the term “ agreement,” or rather to show the meaning which they desired to be attached to that term. The next question arising under the first bill of exceptions is, whether any evidence exists which should have enabled the court to put the question to the jury, whether the mistress had consented that, the petitioner should reside out of the state.

The agreement to set the petitioner free upon the payment of two hundred dollars is proved; and it is proved that from the 7th of August, 1833, till October, 1835, upwards of two years he went at large arid acted as a free man.

We think too, that the receipts furnish evidence that she knew .he was going at large up, at all events, to the 1st day of June, 1835, when she signed the last receipt “ on account.” ■Here then is evidence of an agreement to set him free, and here is evidence of a knowledge of the servant’s going at large, and acting as a free man, which conduct on the part of the petitioner commences at the very time of the agreement.

Now supposing this agreement to be entered into, and this knowledge to exist, may not the jury legally draw the inference, that this going at large, and acting as .a free man, was permitted to enable the petitioner to pay the money he had agreed to pay ? And do not the receipts furnish evidence of her sanctioning during a long period this procedure on the part of the petitioner ?

There is clearly evidence both of knowledge on this subject, and of acquiescence — -and if he should be found to have entered into this agreement — to pay a sum of money for his freedom, and to act as a free man; if in the exercise of this permission he should go abroad into another state, with views of more easily fulfilling his agreement, it is but the exercise of that discretion which every free man has; and which, as it is not limited by any just inference from the testimony, the mistress must take the consequence of the exercise of such discretion.

And the jury would be at liberty to infer from the facts a permission to go whithersoever he pleased, so that by so doing, he could the more readily and easily accomplish the fulfilment of the agreement. We therefore concur with the court in the first exception. These views lead to the decision of the second bill of exceptions in favour of the opinion of the court below. The third bill of exceptions presents a question on the admissibility of evidence.

The purpose for which the letters were offered is not stated, but we presume they were intended to shew, that either the agent in the line of his duty to his principal had been dissatisfied with the petitioner’s going at large, or that his course as indicated by these letters was such as had been dictated by the mistress. These letters are not proven to have been received by her, nor are they shown to have been in her possession, but the bill of exceptions would leave us to infer that they were presented in court by the witness himself.

If offered for either of the above purposes, they were capable of proof by the witness, and should have been testified to by him. As the letters are produced they have no greater efficacy than unsworn declarations, and we think were properly rejected by the court. The fourth bill of exceptions, although other evidence is incorporated in it, offered by the defendants, does not present the question in any light more favourable to them.

Whatever dissatisfaction appears to be expressed in relation to the petitioner’s course, seems to spring from his failure to comply with his contract; and even after the defendant is informed that the petitioner had gone to Washington. And a year after authority is given to an agent to do what he may think proper as to the petitioner, the defendant received from Mr. Pinkney fifty dollars on account, according to her receipt, and according to Mr.

Pinkney’s evidence, on account of said agreement, and in part thereof, thereby still recognizing the agreement as an existing one, and speaking to him at the time of the payment of having entered into such an agreement with the petitioner. We therefore concur with the court below in the fourth bill of exceptions.

On the subject of a resumption of the rights of property over the petitioner after his return, and his seizure and sale amounting to an importation within the meaning of the act of 1796, ch. 67, a question involved both in the first, and fourth prayers we have made no comments, because the question was yielded by one of the counsel of the defendants.

It certainly could not be successfully contended that, if a residence in another state was granted by permission of the owner, that rights of property could be resumed on his coming within the limits of the state, and that for the purposes of servitude within the state, or for sale to a citizen of Maryland. Even although the return had been originally against the consent of the owner, for by such using, or sale to a citizen his return was sanctioned, and if such a course of proceeding do not.amount in law to an importation within the meaning of the act, its provisions would be liable to great evasion.

JUDGMENT AFFIRMED.