John M. Burke vs. Negro Joe, 6 G. & J. 136

Martin, J., delivered the opinion of the court. A negro in this State is presumed to be a slave, and on an application for freedom, must prove he is descended from a free ancestor, or that he has been manumitted by deed or will. It is not pretended in this case that the petitioner is descended from a free ancestor, nor has a deed of manumission or will been produced, but it is contended from the facts disclosed in evidence, a deed of manumission ought to be presumed, and that would entitle him to his freedom.

Although this case has received an ingenious and elaborate investigation by the counsel engaged in it, it would seem to be embraced within a very narrow compass. The inquiry is, whether in any case or under any circumstances, a jury may be directed to presume a deed of manumission, and if so, whether the facts proved in this case, would justify such presumption? The general doctrine of presumption as applied to patents, deeds, &c. is too well established now to require an examination.

Although directed by law to be recorded within a limited time, and to have no legal effect unless such requisitions are complied with, yet to quiet possession, the courts, upon a proper foundation being laid for it, will direct the jury to presume the existence of such papers, and that all legal requisitions had been complied with to give them effect. Can any reasonable suggestion be made, why deeds of manumission should be exempt from this law of presumption?

That every other paper required by law to be recorded, may under circumstances be presumed, but that a deed of manumission alone, although standing upon the same principles should form an exception to the rule? No authority has been produced to shew such an exception, and we think none exists. The presumption of a deed to give freedom, must be founded upon acts inconsistent with a state of slavery, known to the owner, and which can only be rationally accounted for, upon a supposition that he had intended to free his slave.

A negro going at large and acting as free for any length of time, will not per se be a sufficient foundation to presume a deed, because he might be in that situation without the knowledge of his owner, or there might be no person legally authorised to claim him. If this exercise of apparent freedom was without the knowledge of the owner, no supposed acquiescence by him could be deduced from it, nor could the assent be presumed, where the owner, at the time the acting as free commenced, soon after died, and no administration was taken out on his estate.

If those presumptions be correct, it must be admitted, the case before us is of the strongest character to justify the presumption. ' The grand-mother and mother of this petitioner, were the slaves of William Mackubin, and they and their descendants have been at large acting as free, from the year 1797, to 1832. They were permitted to own property, contract debts, rent farms, and support themselves and children until the death of Mr. Mackubin, in 1805, living during that time, within three miles of his residence.

By his last will and testament, he bequeathed all his property to his wife for life, remainder to his children. She administered, and took possession of his property, settled up the estate, and died in 1824. After her death, the children of William Mackubin, who were tenants in remainder of his property, took possession of it, and of the property of Elizabeth Mackubin, sold it, paid the debts of Elizabeth, and divided the residue among them.

They all knew Dinah and Lavinia had been the slaves of William Mackubin, and that they had for many years acted as free, yet no claim was set up to them, but they were permitted to enjoy unmolested their freedom.

It has been contended, that this testimony although at first it appears irresistible, does not afford a sufficient foundation to presume a deed, because the negroes going at large may have been a violation of the act of 1787, ch. 33, by which it is enacted “that any person who shall permit or authorise any slave belonging to him or herself, in his or her own right, or possessed .in the right of another, to go at large, or hire him or herself within this state, shall incur the penalty of five pounds current money per month, except ten days at harvest,” and that so far from justifying the presumption of a deed, it subjected Mr.

Mackubin to a prosecution. It cannot be doubted, that all cases of presumption may be rebutted or explained, and if you can prove by facts the foundation on which the presumption is claimed did not exist, it must fail. In this case, the exercise of freedom by going at large, &c. may have had a lawful commencement, or it may have been an offence under the act of 1787, which would subject the owner to a prosecution. In the absence of all testimony to show it was without right it will be deemed lawful, for the law will never construe

an act tortuous, unless from necessity. It will consider the act lawful, the commencement and contrivance of which is not proved to be wrongful. 7 Wheat. 107. So far from there being evidence in this case to prove the going at large was a violation of the law, the contrary may be fairly presumed from it. By the act of 1787, every person permitting their negroes to go at large, is subject to a prosecution. Dinah and Lavinia are admitted to have been the slaves of William Mackubin in 1797.

They were permitted to go at large to the time of his death, eight years; and yet we hear of no prosecution against him for a violation of this act. After his death, his widow permitting them to go at large, became amenable to this law. She lived until 1824, yet no prosecution is exhibited against her, nor against the representatives in remainder, who after her death still allowed them to go at large and act as free. JUDGMENT AFFIRMED.