Cbanch, C. J.,
delivered the opinion of the Court (nem. con.)
The object of the 21st section of the Maryland Act of 1796, c. 67, seems to have been to prevent the filing of petitions for freedom in the General Court, and to confine the original jurisdiction, in such cases, to the county courts; but not to the court of the county in which the master should reside; for the act provides expressly for the case of a petition filed in one county against a master residing in another county, by authorizing the [615]*615court of thé county in which the petition is preferred, to issue process to compel the appearance of the master, directed to the sheriff of the county in which the master resides; which the sheriff is to serve and return as if issued by the court of his own county. In whatever county the petitioner might be, if he was under the control of his master, he might be said to be residing in that county under the direction of his master.
If he were taken up as a runaway, and confined in the county jail, by authority of his master, he would be residing there under the direction of his master, and might there petition for his freedom. But it seems to us that the legislature contemplated only such colored people as should be claimed as slaves by residents of Maryland. If a colored person, born free in Maryland, but held as a slave in Virginia, should escape into Maryland, in what county in Maryland could he be said to be residing under the direction of his master ? Yet if he were taken up in Maryland as a runaway, we presume the courts of that State would not refuse to hear his petition.
If the object of the act was to ascertain which of the county courts should have jurisdiction of the cause, that object was only applicable to the jurisdiction of the county courts of Maryland ; and it could not be contended that, if the master resided in a county of Virginia, the law of Maryland would give jurisdiction to the county courts of Virginia; nor would a Maryland court be deprived of its jurisdiction, by the plea that the petitioner was residing in Virginia, under the direction of his master ; much less would it be deprived of its jurisdiction by a law of Virginia, which should authorize a person, holden in slavery, to sue for his freedom in that county only in which his master should reside.
The law of Maryland has been adopted as the law of this part of the District,— of this county only; and is to be considered as if enacted here, totidem verbis, mutaiis mutandis. In such case, it can operate only upon such counties as may be formed out of this part of the District; and, as its object in Maryland was only to designate the courts of that State which should have jurisdiction of such causes, it has here no subject to operate upon, inasmuch as we have only one county. It is a law not applicable, in that respect, to the present condition of this part of the District; and, therefore, was either not adopted, or is wholly inoperative.
We consider the negative averment in the defendant’s plea, contained in the words —i! And not in the county of Washington aforesaid, or elsewhere in the District of Columbia aforesaid, under the direction of the said Gabriel,” as an immaterial aver[616]*616ment; for those words, “ under the direction of the sai’d Gabriel,” qualify or modify the whole sentence, and spoil what we should, without them, consider as a very material, and, indeed, the only material averment in the plea. For if the petitioners were .not here at the time of filing their petition, but were residing with their master in Prince George’s county, in Maryland, this Court has no jurisdiction of the cause. The plea does not deny that they were then residing here, but only that they were not residing here under the direction of their master; which is a negative pregnant with this affirmative, that they were residing here. If the petitioners were, at the time of filing their petition, residing here, and holden in slavery by the defendant, we think this Court had jurisdiction ; and it is certain that this Court has exercised jurisdiction in many such cases. This is the first case, however, in which there , has been a plea to the jurisdiction, founded on the twenty-first section of the Act of 1796, c. 67.
The fact stated in the plea, that the petitioners were always residing in Prince George’s county, in Maryland, under the direction of their master, is only an argumentative denial that they were here at the time of filing their petition; which is-bad upon demurrer. And, if they were not then here, it is not material where they were. The averment, therefore, without denying their residence here, is an immaterial averment.
Both the affirmative and negative averments, therefore, being immaterial, the plea is bad, and judgment on the demurrer must be against the defendant, who has committed the first fault in the pleadings.
It has been said, in argument, that the remedy by petition for freedom is given by the statute of 1796, and must be pursued strictly, according to the statute, and can only be used by those who come within its words; namely, persons residing in'the county, under the direction of their masters, &c. But the remedy is not given by that statute. It existed long before, and was in daily use at the time of pa'ssing the Act of 1796. That act only takes away the jurisdiction from certain courts; and does not deprive any person of a remedy which he before had, if he pursues it in the proper court. There is no reason to suppose, that the legislature intended altogether to deprive any class of persons of the protection of the laws. There is no statute which expressly gives to a person, held in slavery, a right to sue for his freedom. The remedy was probably adopted in analogy to that given “by way of petition,” in cases of complaints between masters and servants, under the thirtieth and thirty-first sections of the Act ,of 1715, c. 44, and was probably in use from that time until the passing of the Act of 1796. Nor can the [617]*617action, or the cause of action, be considered as local. "Wherever the master exercises his power over the supposed slave, there the right of action exists. It is, in its nature, strictly personal.
It is suggested, also, that, as the right depends upon the law of Maryland, it can be tried only in the courts of Maryland. But there is no foundation for such a doctrine. Personal rights, acquired by the laws of Maryland, follow the person everywhere, unless they are such as, in their nature, cannot be enjoyed elsewhere.
It is said, also, that the twenty-first section of the Act of 1796 regards Maryland negroes only. This is probably true. But that section is restrictive only, and therefore restrains only Maryland negroes from suing in certain courts; so that if it be adopted as the law here, it would only restrain negroes resident in this part of the District, and only in regard to their choice of the tribunal, in case there were more than one, in this part of the District.
It is true, as alleged in argument, that the injury of which the petitioners complain must be an injury committed here. There must be a holding in slavery here, to give this Court jurisdiction ; but it is not true that this Court has only jurisdiction of a right of freedom which accrued here. If the defendant has a right to hold the petitioner in slavery in Maryland, by the laws of Maryland, he has a right to hold him here, unless the petitioner has acquired a new right to his freedom. So if the petitioner acquired a right to freedom in Maryland, he is free here.
Free access — add to your briefcase to read the full text and ask questions with AI
Cbanch, C. J.,
delivered the opinion of the Court (nem. con.)
The object of the 21st section of the Maryland Act of 1796, c. 67, seems to have been to prevent the filing of petitions for freedom in the General Court, and to confine the original jurisdiction, in such cases, to the county courts; but not to the court of the county in which the master should reside; for the act provides expressly for the case of a petition filed in one county against a master residing in another county, by authorizing the [615]*615court of thé county in which the petition is preferred, to issue process to compel the appearance of the master, directed to the sheriff of the county in which the master resides; which the sheriff is to serve and return as if issued by the court of his own county. In whatever county the petitioner might be, if he was under the control of his master, he might be said to be residing in that county under the direction of his master.
If he were taken up as a runaway, and confined in the county jail, by authority of his master, he would be residing there under the direction of his master, and might there petition for his freedom. But it seems to us that the legislature contemplated only such colored people as should be claimed as slaves by residents of Maryland. If a colored person, born free in Maryland, but held as a slave in Virginia, should escape into Maryland, in what county in Maryland could he be said to be residing under the direction of his master ? Yet if he were taken up in Maryland as a runaway, we presume the courts of that State would not refuse to hear his petition.
If the object of the act was to ascertain which of the county courts should have jurisdiction of the cause, that object was only applicable to the jurisdiction of the county courts of Maryland ; and it could not be contended that, if the master resided in a county of Virginia, the law of Maryland would give jurisdiction to the county courts of Virginia; nor would a Maryland court be deprived of its jurisdiction, by the plea that the petitioner was residing in Virginia, under the direction of his master ; much less would it be deprived of its jurisdiction by a law of Virginia, which should authorize a person, holden in slavery, to sue for his freedom in that county only in which his master should reside.
The law of Maryland has been adopted as the law of this part of the District,— of this county only; and is to be considered as if enacted here, totidem verbis, mutaiis mutandis. In such case, it can operate only upon such counties as may be formed out of this part of the District; and, as its object in Maryland was only to designate the courts of that State which should have jurisdiction of such causes, it has here no subject to operate upon, inasmuch as we have only one county. It is a law not applicable, in that respect, to the present condition of this part of the District; and, therefore, was either not adopted, or is wholly inoperative.
We consider the negative averment in the defendant’s plea, contained in the words —i! And not in the county of Washington aforesaid, or elsewhere in the District of Columbia aforesaid, under the direction of the said Gabriel,” as an immaterial aver[616]*616ment; for those words, “ under the direction of the sai’d Gabriel,” qualify or modify the whole sentence, and spoil what we should, without them, consider as a very material, and, indeed, the only material averment in the plea. For if the petitioners were .not here at the time of filing their petition, but were residing with their master in Prince George’s county, in Maryland, this Court has no jurisdiction of the cause. The plea does not deny that they were then residing here, but only that they were not residing here under the direction of their master; which is a negative pregnant with this affirmative, that they were residing here. If the petitioners were, at the time of filing their petition, residing here, and holden in slavery by the defendant, we think this Court had jurisdiction ; and it is certain that this Court has exercised jurisdiction in many such cases. This is the first case, however, in which there , has been a plea to the jurisdiction, founded on the twenty-first section of the Act of 1796, c. 67.
The fact stated in the plea, that the petitioners were always residing in Prince George’s county, in Maryland, under the direction of their master, is only an argumentative denial that they were here at the time of filing their petition; which is-bad upon demurrer. And, if they were not then here, it is not material where they were. The averment, therefore, without denying their residence here, is an immaterial averment.
Both the affirmative and negative averments, therefore, being immaterial, the plea is bad, and judgment on the demurrer must be against the defendant, who has committed the first fault in the pleadings.
It has been said, in argument, that the remedy by petition for freedom is given by the statute of 1796, and must be pursued strictly, according to the statute, and can only be used by those who come within its words; namely, persons residing in'the county, under the direction of their masters, &c. But the remedy is not given by that statute. It existed long before, and was in daily use at the time of pa'ssing the Act of 1796. That act only takes away the jurisdiction from certain courts; and does not deprive any person of a remedy which he before had, if he pursues it in the proper court. There is no reason to suppose, that the legislature intended altogether to deprive any class of persons of the protection of the laws. There is no statute which expressly gives to a person, held in slavery, a right to sue for his freedom. The remedy was probably adopted in analogy to that given “by way of petition,” in cases of complaints between masters and servants, under the thirtieth and thirty-first sections of the Act ,of 1715, c. 44, and was probably in use from that time until the passing of the Act of 1796. Nor can the [617]*617action, or the cause of action, be considered as local. "Wherever the master exercises his power over the supposed slave, there the right of action exists. It is, in its nature, strictly personal.
It is suggested, also, that, as the right depends upon the law of Maryland, it can be tried only in the courts of Maryland. But there is no foundation for such a doctrine. Personal rights, acquired by the laws of Maryland, follow the person everywhere, unless they are such as, in their nature, cannot be enjoyed elsewhere.
It is said, also, that the twenty-first section of the Act of 1796 regards Maryland negroes only. This is probably true. But that section is restrictive only, and therefore restrains only Maryland negroes from suing in certain courts; so that if it be adopted as the law here, it would only restrain negroes resident in this part of the District, and only in regard to their choice of the tribunal, in case there were more than one, in this part of the District.
It is true, as alleged in argument, that the injury of which the petitioners complain must be an injury committed here. There must be a holding in slavery here, to give this Court jurisdiction ; but it is not true that this Court has only jurisdiction of a right of freedom which accrued here. If the defendant has a right to hold the petitioner in slavery in Maryland, by the laws of Maryland, he has a right to hold him here, unless the petitioner has acquired a new right to his freedom. So if the petitioner acquired a right to freedom in Maryland, he is free here.
The motion of the petitioners, to amend their replication a_ second time, was objected to as unreasonable, inasmuch as a judgment against them upon this demurrer would only remit them to their proper tribunal, that is, the County Court of Prince George’s county, in Maryland.
The petitioners sue quasi in formá pauperis, and the Court ought to see that they are not entrapped in the subtleties of special pleading.
If this Court has jurisdiction of their cause, it ought to exercise it; if it has not, it will not usurp it. If the Court had given judgment against the petitioners, upon the pleadings, as they stood before the amendment, and should afterwards have seen that they could be so amended, consistently with the truth of their case, as to give jurisdiction to this Court, we presume it would have permitted the amendment to be made; especially if it should have appeared, as was probably the case, that the defendant had amended his plea after the first replication [618]*618was filed. The amendment of the replication, however, does not alter the opinion of the Court as to the insufficiency of the plea.
The defendant, afterwards, by leave of the Court, withdrew his demurrer to the replication, and the cause, at a subsequent term, was tried upon its merits, and verdict rendered for the petitioners. No writ of error was taken out.