#### SCOTT *v.*NEGRO BEN.

The right to freedom, under the act of Maryland which prohibits the bringing of. slaves into.that stale, is not acquiiyd by the neglect of the master to *prove to the satisfaction of the naval affa. cer, or collector of the tax, that such slave had resided three years in the United States,*although such proof be required by tb,e act.

ERROR to the judgment of the circuit court for the district of Columbia, sitting at Washington, upon a petition for freedom filed by *Negro Ben*,*against *Sabrett*Scott, who claimed the petitioner as' his slaVe.

The ground upon which the petitioner claimed his freedom was, that he had been imported into the state of Maryland contrary to the act of assembly of that state, passed in the year, 1783, entitled,An act to prohibit the bringing of' slaves into this state;” by which it is enacted, “ That; it shall not be lawful, after the passing this act, to import or bring into this state, by land or water, any negro, mulatto oi other slave, for.sale, or tq reside within this state; and any person brought into this state as a slave contrary to this act, if a slave before, shall thereupon immediately cease to be a slave, and shall oe free; *provided.that*this act shall not prohibit any person, being a citizen of some one of the United States, coming into this state with a *bona jide*intention of settling therein, and who shall actually reside within this state for one year at least, to be computed from *4and next succeeding his coming into- the state, to import or bring in any slave or slaves which before to such person, and which slave or slaves had been an inhabitant of some one of the United States, for the sp'ace of three whole‘years next-preceding such importation *; and the residence of such slave in some one of the United*States, *for three years as aforesaid antecedent to his coming into this*state, *shall be fully*proved, *to the satisfaction of the naval*officer, *or collector of the*tax, *by the oath of the*owner, *or some one or more credible witness or witnesses.*

Upon the trial the defendant below took two bills of exceptions.

The first was to the opinion of the court that it was incumbent on the defendant, (Scott,) in order to bring himself within the proviso contained in the first section of the act of Í783, to showto the jury that it has been fully proved to the satisfaction of the naval officer, or collector 6f the tax, by the-oath of the owner, or some one or more credible witness or witnesses, that the petitioner was a resident of some one of the United States for three years antecedent to his coming into the state of Maryland; and that it was not sufficient for the defendant to prove, on the trial, to the satisfaction of the jury, that the defendant, being a citizen of some one of the United States, and cbming into the state of'Maryland with a *bona fide*intention of settling therein, and who actually resided within the said state for one year at least, computed from and next succeeding his coming into the state, imported the petitioner, who then belonged to the defendant, and that the petitioner had been an inhabitant of some one of the United States for the space of three whole, years next preceding such importation.

The second bill of exceptions was td ‘the refusal of the court to admit,. as evidence, two certificates made during, the trial, the one by the collector of the *customs*and naval officer of the *United States,*
      *5for the district and port of Georgetown in the district of Columbia, and the other by a collector , of taxes, appointed by the lew court for the county of Washington, in that district; the purport of which certificates' was, that Scott had, on tjiat day, (16th June, 1807,) by his own oath, proved, to the satisfaction of each of those officers respectively, that Ben “ was a resident of the state of Virginia, one of the United States, three whole years next preceding the time when, the said , mulatto . Ben was brought into the state of Maryland-.”

The cause was argued by *C. Lee*and Jones, for the plaintiff in error, and by *Swann*and *F. S.*Key, for the defendant.

*February*7,

Marshall, Ch. J.

delivered the opinion of the court as follows, viz.

In this case, three opinions were given by the circuit court, to each of which the defendant in that court excepted. These opinions were, in substance,

1. That the master of a slave imported into the state of Maryland, while the act, passed in the year 1783, entitled, ‘‘‘An act to prohibit the bringing' slaves ipto this state,” was in force, could not be admitted to prove the fact that such slave had resided three years, previous to nis importation into Mary-, land;'in some one of the United States, unless lie could show that this fact had been proved to the satisfaction of the naval officer, or collector of the,tax.

2. That a certificate made by the naval officer and collector of the porf of Georgetown, dated on the '16th day of June, in the year 1807, certifying that this fact was proved to his satisfaction on that day, did not satisfy the Jaw.

3. That a similar certificate given by the collector *6of the tax' for the county ,of Washington did not satisfy the law.

The correctness of these opinions is to be tested by comparing them with the act under which the plaintiff in the court below claimed his freedom.

The enacting clause of that law prohibits the importation of slaves into the state of Maryland, and gives freedom to such as' shall be imported contrary to that act. A proviso excepts from the operátion of the enacting clause thosé slaves which, having-resided . for three years within some, one /of the United States,-and being the property of-the importer, should be imported into .the state of Maryland by a person intending to become a resident thereof, and who should actually reside, therein for the space .of twelve months thereafter.' The act then adds — and the residence of such slave in some one of the United States for three years as aforesaid, antecedent to his coming into. this state, shall be fully proved to the satisfaction of the naval officer, or collector of the tax, .by the oath of the owner, or some one or more credible witness or witnesses.

By the plaintiff in error it is contended, that this part of the law is directo "; that it prescribes a-duty to the importer of a slave within the description qf the proviso, but does not make his title to that slave dependent , on the performance of this duty.

By the defendant it is contended, that this clause forms a part of the proviso, arid that the fact of previous residence within some one of.the United States can be proved by no other testimony, if that -which is here prescribed be wanting.

The act, in its expression, is certainly ambiguous, and the one'construction or the other may be. admitted, without greáí violence to the words which are employed.

The great object of the proviso certainly was to. *7permit persons, actually migrating into the . te of Maryland, to bring with them property of this description'which had. been within the United States a sufficient time ito exclude the danger of its being imported into America for the particular purpose. The great object of the provision was, that'the fact itself should accord with’this intention. The manner in which that fact should be proved was a very subordinate consideration. Certainly the provisions of the law ought not to besó construed.as to defeat its object, unless the language be such as absolutely to require this construction.

It would be a singular and a very extraordinary provision that a naval officer, or the collector of a tax, should be made the sole'judge of the right of' one individual to liberty, and of another to property. It would be equally extraordinary that the oath of one of the parties, probably in the absence of the other, should be conclusive on such a question. It would be hot less strange that .the manner, in which this *quasi*judge should exfecute his duty should not be prescribed, and that not even the attempt should be made to preserve any evidence of his judgment.

. These considerations appear to the court, to have great weight; and the language of the law ought to be very positive to deprive them of their influence.

Upon an attentive consideration of that language, the majority of the court is of opinion, that the property of the master is not lost by omitting to make the proof which was directed, before the naval afficér, or the collector of the tax, and that the fact on . which his right really depends may' be proved, notwithstanding this 'omission.

The wórds of'.this part of the sectioh dp not ap- ■ péar to the court to be connected, either in their sense, or in their mode of expression, with the proviso. It is a distinct and a substantive, regulation. In legislation, the conjunction “ and” is very often used \yhen a provision is made in no degree depend*8ent on that which precedes it;' and, in this case, no terms are employed which indicate the intention of the legislature, prescribing this particular duty, to make the right to the property dependent on the performance of that duty.

It is, then, the opinion of the majority of the court, that the fact of the residence of the plaintiff below within the United States was open for exami* nation, even had his master omitted entirely to make the proof of that residence before the naval officer, of collector 9f the tax, and, consequently, that the circuit court erred in refusing to admit testimony respecting that fact.

The opinion of the court on this point renders *&'*decision on the other exceptions unnecessary.