Under a statute of Maryland passed in 1796, a deed of
manumission is not good unless recorded within six months after its
date, and this law is in force in Washington county, District of
Columbia.
The statutes and decisions of Maryland examined.
The defendants in error filed their petition in the circuit
court, by which they claimed a right to their freedom, under a deed
of manumission executed to them on 28 February, 1842, by their
owner, George Miller, who was an inhabitant of Washington County,
at the date of the deed, and at the time of his death, and on whose
estate the plaintiff in error had taken administration.
The petition, setting out the character of the claim of the
defendants in error, was in the following words.
"To the Honorable, Judges of the Circuit Court of the District
of Columbia for Washington County: "
"The petition of Betsey Herbert and Caroline Herbert humbly
showeth that your petitioners were the slaves of George Miller,
late of the City of Washington, deceased; that the said decedent,
in his lifetime, intending to manumit and set free from slavery
your petitioners, caused to be prepared a paper writing for that
purpose, and sent for S. Drury, Esq., a justice of the peace of
said county,
Page 46 U. S. 73
to take his acknowledgment hereof, and also Charles Bowerman and
John Hoover to witness the execution thereof; that on 28 February,
1842, the said justice and the said witnesses came to the house of
said George Miller, and the said George Miller did then and there,
in the presence of the said witnesses, execute the said paper
writing, and did acknowledge the same before the said justice of
the peace, but the said witnesses neglected to sign, or did not
understand that they were called upon to sign, the said instrument
as witnesses; that the said George Miller retained the said paper
writing in his possession until some short time before his death,
when he gave it to your petitioners, with instructions to place it
in the hands and follow the directions of Mr. John McLelland, of
this city, which your petitioner did; and the said John McLelland,
discharging the said trust, placed the said paper writing in the
hands of Joseph H. Bradley, Esq., an attorney of this Court, who
lodged the said paper in the Orphans' court of the county
aforesaid."
"Your petitioners claim that, by the said paper writing, so
executed and delivered, they are entitled to their freedom, and
they are advised it was not necessary that the said paper should
have been signed by said witnesses, and that the same is a good and
operative deed. But if the said deed ought to have been signed by
said witnesses, they claim that this Court, acting as a court of
chancery, will permit the execution thereof to be proved now, and
will decree the said deed to be put on record."
"The further show that, after the delivery of the said deed to
your petitioners, the said George Miller departed this life
intestate, and that Henry Miller administered on his estate, and
now claims them as part of the personal estate of said George
Miller, and they pray that he may be summoned and required to show
cause why the paper writing shall not be admitted to record, and
your petitioners declared free."
"JOSEPH H. BRADLEY,
for petitioners"
The counsel for the respective parties then filed the following
agreement:
"
Agreement of Counsel"
"It is agreed, that if this Court shall be of opinion that they
would have power, sitting in chancery, to decree the record of the
deed, the execution of which was imperfect under the law, because
the witnesses did not sign it, 'in such case this Court shall have
the same power to decree or adjudge the said defect to be rectified
as it would if sitting as a court of chancery,' it being distinctly
understood that the facts are not admitted, but proof thereof is
required, and the defendant is to offer any legal proof to meet the
petitioners' case; and the petitioners are to sustain their
petition by competent proof. It being the object of this agreement
to avoid the expense
Page 46 U. S. 74
of a bill in chancery, and to bring all the questions which may
arise at law or in equity before the court under the petition."
"JOSEPH H. BRADLEY,
for Petitioners"
"WILLIAM L. BRENT,
for Defendant"
The instrument relied on in support of the petition, as the deed
of manumission from George Miller, and referred to in the bill of
exceptions as paper marked A, was in these words:
"To all whom it may concern, be it know that I, George Miller,
of Washington county, District of Columbia, for divers good causes
and considerations me thereunto moving, have released from slavery,
liberated, manumitted, and set free, and by these presents do
hereby release from slavery, liberate, manumit, and set free, my
negro women, one named Betsey Herbert, about forty-two years of
age, and the other named Caroline Herbert, about seventeen years of
age, both able to work and gain a sufficient livelihood and
maintenance; and they, the said negro women, named Betsey Herbert
and Caroline Herbert, I do declare to be henceforth free,
manumitted, and discharged from all manner of service or service to
me, my executors or administrators, forever."
In witness whereof I have hereunto set my hand and seal, this
27th day of February, in the year of our Lord one thousand eight
hundred and forty-two.
"GEORGE MILLER [Seal]"
"District of Columbia, Washington County, to-wit: "
"Be it remembered, and it is hereby certified, that on 28
February, in the year of our Lord eighteen hundred and forty-two,
personally appeared before me, a justice of the peace in and for
said county and district, George Miller, and acknowledged the
foregoing deed or manumission to be his act and deed for the
purposes therein mentioned, as witness my hand and seal."
"SAMUEL DRURY, J. P. [Seal]"
Issue having been joined upon the right alleged in the petition,
and a jury been empanelled to try that issue, the following bill of
exceptions was, at the trial, sealed by the judges.
"
Defendant's Bill of Exceptions"
"Betsey and Caroline Herbert, v. Henry Miller, Administrator of
George Miller."
"The plaintiffs offered evidence tending to prove that George
Miller, who owned and held the slaves, petitioners, sent for a
magistrate, Mr. Drury, and also two witnesses to witness the paper
market A., which paper was signed by said Miller in the presence of
said witnesses, and acknowledged before said Drury, but was not
then, and never was, signed by said intended attesting witnesses,
before whom and in whose presence said Miller admitted the deed to
be his, and desired said witnesses to attest to the same; to
the
Page 46 U. S. 75
reading of said paper in evidence the defendant objected, and
said objection was overruled and excepted to by the defendant. The
defendant then offered evidence tending to prove that the paper
marked A was, immediately upon the death of the maker, Miller,
which took place about eighteen months after the execution thereof,
delivered to Mr. McLelland, by the petitioners, who stated that it
was so done by the direction of Miller, and who also stated that
they held possession of the paper from the time of its execution
until that time, and also that Miller, the grantor in said paper A,
died largely indebted, and left no property other than said
petitioners, sufficient to pay his debts, and also that defendant
has regularly and duly administered upon the estate in this county
of said deceased. Whereupon the defendant, by his counsel, moved
the court to instruct the jury that upon the evidence aforesaid the
plaintiffs are not entitled to recover, which instruction was
refused by the court, and the defendant excepts to said refusal,
and prays that this his several bills of exceptions may be signed,
sealed, and enrolled, which is accordingly done."
"W. CRANCH [Seal]"
"B. THURSTON [Seal]"
The jury, under the instructions given by the court, found a
verdict for the petitioners,
viz., that they were
free.
To review these two decisions of the court, the case was brought
up by writ of error.
Page 46 U. S. 78
MR. JUSTICE DANIEL, after having read the statement of the case
at the commencement of this report, proceeded to deliver the
opinion of the Court.
By the statute of Maryland, passed in 1715, cap. 44, § 22,
it is enacted "That all negroes, and other slaves then imported,
and their children, then born or thereafter to be born, shall be
slaves for life." Upon examining the legislation of Maryland, from
the period of the law of 1715, a variety of enactments will be
seen, showing the policy of this state in the government of her
slave population, and as entering essentially into that policy,
must be considered the several regulations under which she has
permitted manumission, either by deed or by will. The enactment
here referred to may be found in Kilty's Laws, vol. 1, session of
1752, cap. 1, where they are collated, by their dates, down to the
Act of December 31, 1796, under which last mentioned statute the
questions now before this Court have immediately arisen. In the
interpretation given to these statutes by the tribunals of the
state, one characteristic will impress itself on every mind, and
that is the strictness with which the laws have been expounded in
reference to the power of manumission conferred by them. It seems
to have been thought that very little, or indeed nothing, was
permitted by the policy of the state to construction or
implication, but that rather the conditions prescribed for the
exercise of the power conceded should be fulfilled almost to the
letter. Of the propriety of views such as these, on the part of the
state, with regard to her own internal policy, no just ground of
complaint can be alleged; but of the reality of those views, a
reference to a few of the adjudications of her courts will leave no
doubt. By the Stat. of 1752, cap. 1, § 5, manumission was
allowed, by writing under bond and seal, "evidenced by two good
witnesses at least." Under this statute arose the case of negro
James V. Gaither, which was a claim to freedom, upon a writing
signed and sealed, but subscribed by a single witness only. Parol
proof being offered to establish the fact, that the deed was
executed in the presence of another witness, who did not attest it
by subscription, the Court of Appeals ruled such proof to be
incompetent and inadmissible under the statute.
See 2
Harr. & J. 176.
The case of
Wicks v. Chew, 4 Harr. & J. 543, a case
arising under the statute of 1796, is yet more strongly
illustrative of the rule above mentioned. By the statute just
referred to, chap. 67, § 29 (Kilty's Laws), deeds of
manumission are required to be recorded within six months from
their date. By another statute of Maryland, passed in 1785, Kilty's
Laws, chap. 72, it is
Page 46 U. S. 79
provided, in the third section thereof --
"That in case any deed hath been or hereafter shall be executed,
to the validity of which deed recording is necessary, and such deed
hath not been or shall not be recorded agreeably to law, without
any fraudulent intention of the party claiming under the same, the
chancellor, upon petition of the party to whom the said deed was
executed, or of his, her, or their legal representative, or of any
of them claiming the land or other thing conveyed or intended to be
conveyed by such deed, and without the appearance or hearing of the
defendant or defendants, shall have power to decree the recording
of the said deed in the county or general court records, within
such time from the date of the decree as it ought originally to
have been recorded from the date of the deed,"
giving to the deed, when thus admitted to record, the same
effect it would have had if the irregularity thus cured had never
occurred. Chew and others, claiming freedom under a deed from
Darnell, against Wicks and others, heirs and devisees of Darnell,
filed their petition with the chancellor, stating that Darnell, had
died without putting the deed on record within the six months
prescribed by law, and praying the chancellor, upon due notice to
the heirs and devisees, to decree that the deed be recorded, that
thereby validity might be restored to it. The chancellor, deeming
himself so authorized by the third section of the act of 1785,
decreed that the deed be admitted to record within six months from
the date of his decree. The court of appeals reversed this decision
of the chancellor, and the reasoning of the court conclusively
shows the principle on which they place these instruments of
manumission, and on which they distinguish them from transactions
with a party who is
sui juris. They declare that the
statute of 1785 embraces only cases of mutual but inchoate rights,
but still of rights founded on some valid consideration, such as
courts can take notice of and enforce; that manumission by the laws
of Maryland is a mere gratuity, and until evidenced by all the acts
or requisites the law prescribes, has no legal existence, and can
have created no faculty in the contemplated object of that
gratuity. The language of the court of appeals is as follows:
"The acts of assembly referred to (
i.e. by the
chancellor in support of his decree) are not intended to give
relief in cases which were before without remedy, but to give an
additional remedy by enabling a party, acquiring equitable rights
under a deed not operative in law for want of recording, to perfect
those rights, by applying to the chancellor to order the original
instrument to be recorded, and thus to give it the effect which by
law it would have had if recorded in due time, instead of going
into chancery to compel a conveyance, or enforce a specific
performance. They are intended to give an accumulative remedy to
persons able to contract, and who by deed acquire rights which
equity will protect, with the power to prosecute those rights. But
by the laws of this state, a negro, so long as he is a slave, can
have
Page 46 U. S. 80
no rights adverse to those of his master; he can neither sue nor
be sued, nor can be make any contract or acquire any rights under a
deed which a court of law or equity can enforce. And as it is the
recording of a deed of manumission within the time
prescribed by law, which entitles him to his freedom, he continues
a slave and can acquire no rights under such an instrument until it
is so recorded, and consequently cannot go either into a court of
law or equity for relief of any kind."
Again, the court said in this case, that
"A master may execute and acknowledge a deed of manumission, and
afterwards destroy it or keep it, and refuse to have it recorded,
and the slave remains a slave without redress."
Another striking instance of the rule of interpretation of their
own statutes, adopted by the courts of Maryland, is found in the
case of
Anna Maria Wright v. Lloyd N. Rogers, reported in
9 Gill & J. 181. In this case, Tilghman, the owner of the
female slave, executed and delivered to her, in 1832, a deed of
manumission, which was duly acknowledged but not recorded.
Subsequently, Tilghman sold and conveyed the same have by bill of
sale, duly acknowledged and recorded, to a purchaser who had notice
at the time of the previous deed of manumission. This purchaser
afterwards sold the slave to Rogers, to whom, in 1833, he executed
and delivered a bill of sale, which was acknowledged and recorded
according to law. The legislature, at their session, December,
1834, passed a special law, authorizing the deed of manumission to
be recorded, providing further that the same when recorded should
be as valid and effectual for every purpose as if it had been duly
recorded according to law. After the deed had been recorded
pursuant to this law, the negro filed her petition for freedom; the
judgment of the county court was against her title, and that
judgment was affirmed by the court of Appeals.
By the 29th section of the statute of 1796, Kilty's Laws, chap.
67, the power of manumission by writing under seal was reenacted
from previous statutes, enumerated, and repealed in the 31st
section of the act of 1796. In the 29th section, many of the
conditions contained in the prior laws are prescribed, and amongst
these are the requisitions, that the slave to be emancipated shall
be sound in mind and body, and not over 45 years of age; that the
deed of manumission shall not be in prejudice of creditors; that it
shall be acknowledged before a magistrate, and entered amongst the
records of the county court where the person or persons granting
such freedom shall reside, within six months from the date of such
instrument of writing. Upon the construction of this section of the
act of 1796 arose the questions presented to the court below, and
now brought here for adjudication. These questions are various, as
appears by the bill of exceptions sealed by the judges of the
circuit court, and by the assignment of errors upon the record, but
they are all necessarily subordinate to a decision upon the
validity of the
Page 46 U. S. 81
instrument of manumission as affected by the failure to record
it within six months from its date. This omission is admitted in
the petition for freedom, and is made out by the proofs upon which
the instruction prayed by the defendant in the courts below was
asked and refused, and it remains to be considered how far such
omission operated to destroy all foundation of the right sought to
be asserted in this case.
This inquiry, as a question of Maryland law, we think is without
difficulty. The decisions already quoted are clear and explicit.
They treat the right asserted and the instrument alleged in
evidence thereof as having no legal existence, as nullities to all
intents and purposes, and therefore as nothing of which common law
or equity can take cognizance, until that right and the pretended
evidence of it can be brought forward, attended with every mark and
attribute of being, which the statute has called for, and one of
these, as clearly defined as any other, is
admission to
record. This indeed is treated as the great, the capital test
of existence, for it is this which places the transaction
definitely beyond the control of the master, and proclaims, beyond
the power of denial, both the intent and its consummation. And why
should this not be treated as a question of Maryland law. The
statutes of Maryland in being at the cession of the District of
Columbia were adopted as the laws of the County of Washington, to
be there enforced until altered by authority of Congress, and the
rights of person and of property vested or existing under those
laws, and all interpretations of those laws by the supreme tribunal
of Maryland, became in like manner the rules of right within the
same county. This case, too, is one of a right sought to be
maintained under a Maryland statute, a right which seeks to lay its
foundation in the terms of that statute, and no where else. But
whilst it is conceded as a general proposition that the laws of
Maryland, at the period of the cession of the District of Columbia,
are laws of the County of Washington till changed by the authority
of Congress, it has been urged that, in instances in which the
Maryland statutes have received no settled interpretation by the
Maryland courts anterior to the cession of this district, the
federal courts are free to interpret the provisions of those
statutes as they would be to pass upon any other subject of
original cognizance, and would not be bound by decisions of the
state courts made posterior to the cession. This position is not
denied; it has indeed been sanctioned by this Court in the cases of
Fenwick v.
Chapman, 9 Pet. 461, and
Wallingsford v.
Allen, 10 Pet. 583. But admitting this position
fully, still we must also admit that the courts of the United
States would feel great respect for the decisions of the state
courts upon questions essentially connected with the general
internal policy of the state, nay, would yield to those opinions
upon matters of doubtful construction, or wherever well ascertained
and paramount obligations did not forbid such an acquiescence. But
the statute of 1796 was anterior to the cession of the District
of
Page 46 U. S. 82
Columbia; and although the cases of
Wicks v. Chew, 4
Harr. & J. and of
Anna Maria Wright v. Rogers, 9 Gill
& J. were posterior to that event, still these cases cannot be
correctly understood as deciding any new question, or as
introducing any principle not well settled long before it. The case
of
James v. Gaither occurred under the statute of 1752,
and upon an instrument of manumission executed in 1784; the statute
of 1796, too, is a reenactment of provisions of other statutes,
going back as far as the year 1752, and the decision in
James
v. Gaither, and in the subsequent cases, are nothing more than
the repeated expositions of a settled policy or rule of
interpretation of the Maryland statutes,
viz., that the
conditions prescribed by them must be strictly fulfilled; that
without such fulfillment any pretended instrument of manumission
must be treated as a nullity, and can impart no rights, can give no
standing in court, either at law or in equity. We think then that
this is a question of Maryland law, which has been settled by the
courts of Maryland, and should not now be disturbed; that in
conformity with decisions of those courts, the recording of the
deed of manumission in this case, within the time prescribed by the
statute of 1796, was an indispensable prerequisite to confer any
rights on the petitioners in the court below, or to give them any
standing in a court of law or equity; that in accordance with this
interpretation of the statute, the circuit court should have given
the instruction asked for by the counsel for the defendants; that
in refusing to give such instruction that court has erred, and
therefore its decision should be reversed.
In reference to the agreement signed by counsel and annexed to
the record in this case, and by which all the powers that a court
of equity could properly exert in aid of instruments defectively
executed were conceded to the circuit court as if sitting as a
court of equity, we remark that the grounds presented by that
agreement are entirely covered by the opinion above expressed of
the absolute nullity of the deed in question, it being no more
within the powers of a court of equity than it is within those of a
court of law, to set up and establish that which is illegal or
wholly void.
Order
This case came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by this Court, that the judgment of the said circuit
court in this cause be and the same is hereby reversed, with costs,
and that this cause be and the same is hereby remanded to the said
circuit court, with directions to award a
venire facias de
novo.
