# Wallingsford v. Allen

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United States Supreme Court
35 U.S. 583
Wallingsford v. Allen
IN error to the circuit court of the United States for the county of Washington in the District of Columbia.
On the 4th day of August 1834, the defendant in error presented to the circuit court a petition stating, that she and her two infant children were entitled to their freedom; and that she and they were unjustly held as his slaves, by Joseph Wallingsford, the plaintiff in error. Joseph Wallingsford appeared to the subpoena issued on the petition, and put in a plea, denying the claims of the petitioner. The case was tried by a jury at the circuit court held in March 1835, and a verdict was found for the petitioner under the charge of the court, from which the plaintiff in error took three bills of exceptions; and prosecuted, from the judgment of the court, this writ of error.
On the trial of the cause in the court below, the petitioner produced a regular deed of manumission, duly recorded, executed by Rachel Wallingsford, the wife of the plaintiff in error, dated the 8th of September 1826; by which, and for divers good causes and considerations, and in consideration of the sum of 150 dollars paid to her, she released the petitioner and her children from slavery; the petitioner being at that time nineteen years old, and her two female children of the respective ages of three years and five months.
The petitioner also proved, that Rachel Wallingsford resided in the city of Washington, for many years, as a feme sole, previous to the date of the deed; that she had a suit for alimony depending in Maryland, against Joseph Wallingsford, he residing in that state; and that the court ordered her husband to pay her 120 dollars per year, as alimony, pendente lite; that some time after that allowance had been made to her, her husband gave the petitioner to her, then about twelve years old, and some other property, in discharge of the order of alimony, his wife agreeing not to prosecute the claim any further; that after the petitioner was so given to Mrs Wallingsford, she lived with her, or was hired out in Washington, until the date of the deed of manumission; that on the death of Mrs Wallingsford, the plaintiff in error claimed her, and her children, as his slaves.
The court permitted the deed of manumission to be read in evidence to the jury, by the counsel for the petitioner; expressly leaving it to the jury to say, or find from the evidence, whether the title of the said Rachel to the said negro Sarah Ann, at the time of the execution of the said deed, was absolute, or only for the life of the said Rachel; and the court instructed the jury that that question was open for their consideration upon all the evidence in the cause.
The defendant in the circuit court excepted to the admission of the deed of manumission in evidence, and to the instructions given to the jury
The defendant, by his counsel, prayed the court to instruct the jury, that if they should believe from the evidence aforesaid (viz. the evidence stated in the first bill of exceptions), that Mrs Wallingsford held the petitioners by virtue of an agreement made between her and her husband, without the intervention of a trustee; that said agreement is null and void, and could give no power to Mrs Wallingsford to manumit the slaves held by virtue of such an agreement. The court refused to give this instruction, and the defendant excepted to the refusal.
The defendant prayed the court to instruct the jury, that if they should believe from the evidence, that an agreement was made between the defendant and Mrs Wallingsford, by which she was to have the petitioners in lieu of being supported by him as his wife; yet, if there was no covenant on the part of a trustee, or some one capable of contracting with the husband, that he should not be liable to the maintenance of his wife: the same is null. The court refused to give this instruction, and the defendant excepted.
The defendant prayed for the court to instruct the jury, that if they should believe from the evidence, that an agreement existed between him and Mrs Wallingsford, that he should transfer the petitioner to her, on condition that she should relinquish all claim to alimony against him; that then, should the jury believe from the evidence, that she did not comply with this condition, and that she did prefer against him a subsequent claim for alimony; that then the agreement cannot be enforced against the defendant, nor can he be deprived of any of his rights by virtue of the said agreement. The court refused to give this instruction, and the defendant excepted.
The defendant then prayed the court to instruct the jury, that if they should believe, from the evidence aforesaid, that the petitioners or any of them, at the time of the execution of the deed of manumission aforesaid, were not able by their labour to procure for themselves sufficient food or raiment, with other necessary requisites of life, then the said deed of manumission as to them, or such of them, was inoperative; which instruction the court gave: and also on the prayer of the counsel for the petitioners, further instructed the jury, that if they should believe, from the said evidence, that the negroes abovementioned were of healthy constitutions, and sound in mind and body, and that their mother was capable by labour to procure to them sufficient food and raiment, with other requisite necessaries of life, and did maintain them; then such children are not under the incapacity intended by the Maryland law.
The defendant excepted to the last instruction.
The case was argued by Mr Brent, for the plaintiff in error; and by Mr Dandridge and Mr Key, for the defendant.
Mr Brent contended, that:
1. The court below erred in permitting the deed of manumission from Rachel Wallingsford, the wife, to be read in evidence as stated in the first bill of exceptions.
2. Because the court below erred in refusing to give the instructions prayed for by the plaintiff in error, in his second bill of exceptions.
3. Because the court below erred in refusing to give the instructions as moved for in the third bill of exceptions.
4. Because the court below erred in refusing the instructions moved for in the fourth bill of exceptions.
5. Because the court below erred in giving the instructions prayed for by the petitioners in the fifth bill of exceptions.
There is no denial that Rachel Wallingsford was, at the time of the deed of manumission, the wife of the plaintiff in error. There had been no judicial separation, no divorce. Nor is it denied that the defendant in error was at one period the slave of the plaintiff in error.
The questions then which present themselves, are:
1. Whether a wife separated from her husband can do any act by deed which will bind him at law, and deprive him of his property, without his express consent and authority.
2. Whether if a wife can so contract, yet is not the introduction of a trustee necessary; and are not her acts without the aid of a trustee null and void.
If no contract is valid, if none can be made; than the plaintiff in error is right, and the judgment of the circuit court must be reversed.
There is an absolute disability in a wife to make any contract, or to execute any valid deed. 15 Serg. & Rawle 90; Petersdorf's Abird. 53, 55, 57, 65; Story's Conflict of Laws 125. In all these authorities it is held that a wife cannot execute a contract, separately from her husband.
It is admitted that there are exceptions to these principles: as when the husband has abandoned his wife, or has abjured the realm; she may contract. But these exceptions have no application to the case before the court.
It cannot be said that the plaintiff in error abandoned his wife. She left him, and she resisted every effort to induce her to return. Cited, 2 Kent's Com. 160, 161, 175, 176; 4 Petersdorf 40, 41; 2 Harr. & Johns. Rep. 485.
The instruction given by the circuit court, that the ability of the mother to maintain the children would be sufficient to legalize the manumission of the infants; was in direct opposition to decisions of the courts of Maryland, on the statutes of that state.
For a considerable period, there was an express prohibition by the laws of Maryland of manumissions in any form. This was prior to 1796. It was the settled policy of the state not to allow any slaves to be set free. By the act of 1715, ch. 44, sect. 22, all negroes were declared slaves for life; and this law deprived the owners of slaves of the right to give any one of them freedom. Then came the statute of 1796, which prohibits manumission of persons not able to maintain themselves. This act makes all deeds of manumission of such persons, absolutely void. But for the act of 1796, no manumissions could be made; and none are valid which do not conform to that law. It cannot be contended that infants of three years old and under, have such ability. Cited, 6 Harr. & Johns. 18, 19; 4 Harr. & Johns. 262.
These laws have full operation in the District of Columbia, on the east side of the Potomac; and they govern the case before the court. They make the deed of manumission void, even if the grantor of the same was competent to give it. The decisions of the Maryland courts on this statute, made since the establishment of the District, may not be authority in this court; but as they give a construction to the statutes of the state, the court will regard them as entitled to great consideration.
Mr Dandridge and Mr Key, for the defendant, insisted on the capacity of Mrs Wallingsford to execute the deed. She was a feme sole: she had been abandoned by her husband: she was within the exceptions to the rule which vacates the contracts or deeds of married women. Cited, 1 Kent's Com. 157; 6 Pick. Rep. 89; 15 Mass. Rep. 31; 2 John. Ch. Ca. 537; 1 Atk. 278.
The agreement by which the defendant in error became the property of Mrs Wallingsford, was a substitute for the allowance of alimony, and relieved the estate of the husband from a heavy responsibility. If no property in the slave was acquired by the wife, nothing was received by her; and the effort now made is to set up a fraud for the benefit of the perpetrator of it. The very nature of the transaction made the defendant in error the separate property of Mrs Wallingsford. It was left by the circuit court to the jury to say, whether the arrangement was not binding on the husband; and they decided that it was. This gave the defendant in error and her children their freedom.
It was entirely competent to the husband to give his wife this property; and the facts of the case show, that the emancipation of the defendant in error was for a pecuniary consideration. The sum of 150 dollars was paid to her for the deed. She had been living in a different jurisdiction for many years: she was in great distress; and her husband gave her the girl for her support and maintenance. She had a right to dispose of her as she did, to procure the means of living.
As to the construction given by the counsel for the plaintiff in error to the laws of Maryland, Mr Key contended that the thirteenth and twenty-ninth sections of the law of 1796, ch. 67, are different. In the one case, the case of a will, there are prohibitory words; and not in the other.
Further, the expressions in the twenty-ninth section are, slave or slaves: any person having slaves may emancipate them, if sound, healthy, and able by labour to earn a living, &c. Now these slaves in this deed, taking them, as the words allow, and as the spirit of the law would allow, in the aggregate, are able to maintain themselves.
Again, the decision in such a case should be, not that the deed is void, but that the freedom is not to commence by it till the children are of sufficient age.
Mr Justice WAYNE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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