#### Hunter, Pauper, v. Fulcher.*

March, 1829.

(Absent Brooke, p., and Coaetbk, J.)

Slaves — Suit tor Freedom — Case at Bar, — By statute of Maryland oi 179(5. all slaves brought into that state to reside, are declared tree: a Virginia born slave is carried by his master to Maryland: the master settles there, and keeps the slave there, In bondage, Cor 12 years, the statute in force ail the time: then, he brings him as a slave to Virginia, and sells him here. Adjudged, in an action brought by the man against the purchaser, that he is free.

This was a suit brought, in the hustings court of Richmond, by the appellant against ihe appellee, to recover his freedom. It was once before in this court, and was sent back to the hustings court for a new trial. 5 Rand, 126. The case was then stated and agreed by the parties, and was, in substance, thus : George Hunter, the plaintiff, was born in the county of Fairfax, in Virginia, the slave of Thomas W. Offutt, a resident citizen of that county; by whom he was given to his daughter, who married William M. Offutt, and after her marriage, removed with her husband, from Fairfax to the *county of Montgomery in Maryland. And upon their removal to Maryland, they carried Hunter with them, as their slave ; and he resided, with his master and mistress, in Maryland, about twelve years. After this residence in Maryland, he was brought back to Virginia, and was sold by his master William M. Offutt, in the county of Jefferson, Virginia, for valuable consideration, to one Hill; who afterwards brought him to Richmond, Virginia, as his slave, and there sold him to the defendant Fulcher, for 450 dollars. The sale to Hill, as well as the sale to Fulcher, was made after the year 1819. By an act of the general assembly of Maryland, passed at its session of November 1796, entitled an act relating to negroes, and to repeal the acts of assembly therein mentioned, it was, among other provisions, enacted as follows, viz. “ That it shall not be lawful from and after the passing of this act, to import or bring into this state, by land or water, any negro, mulatto, or other slave, for sale, or to reside within this state ; and any person brought into this state asa slave, contrary to this act, if a slave before, shall thereupon immediately cease to be the property oi the person or persons, so importing or bringing such slave within this state, and shall be free.” And this provision of the statute of Maryland was, at the time when Hunter was carried thither by W. M. Offutt, and during all the time of Hunter’s residence there, and still is, in full force, as part of the statute law of that state.

The question was, Whether upon this state of facts, Hunter was entitled to his freedom ? The hustings court held, that he was not, and gave judgment for the defendant. Hunter appealed to the circuit court of Henrico, which affirmed the judgment. And then he appealed to this court.

Scott, assigned counsel for the pauper. The appellant was born a slave in Virginia. He did not himself break his bondage : his owner, who was or became a citizen of Maryland, carried him to that slate, to reside there, and in fact kept him there for twelve years: and by the positive *law of Maryland, the owner forfeited all right of property in his person, and he was free. His right to freedom was completely vested in Maryland. But he did not assert it there. He was afterwards brought back to Virginia without any exercise of his own will, and sold here as a slave. And the only question is, whether he can assert in Virginia, the vested right of freedom he acquired by the law of Maryland?

If he cannot, it is difficult to imagine any reason, why the owner of a slave in Virginia, carrying him of bis own accord to Maryland to reside, and there voluntarily emancipating him in conformity with the laws of that state, may not, if he can at any time afterwards find or bring him here, resume the property which he formerly held in him under the laws of Virginia : for an act of manumission of the owner conferring freedom on his slave, by authority of the law of Maryland, cannot be more effectual to confer freedom, than the very law of Maryland itself, acting on persons and property to all intents and purposes subject to her jurisdiction. Neither is there any just reason, why this right to freedom acquired under the law of Maryland should not be enforced in Virginia, as well as any other personal right acquired under the laws of that or any other state.

In Lewis v. Fullerton, 1 Rand. 15, the pauper claimed a right to freedom, on the ground that his mother had, before his birth, sojourned in Ohio, and so had been made free by the law of that stale, and had been there adjudged free, upon a writ of habeas corpus. The only residence of the mother in Ohio, proved in the case, was, that she was once seen on a Sunday, working in a sugar camp there, in her owner’s absence, and without any evidence that it was with his permission ; but the court said, that such an occupation as that, had it even been for the owner’s benefit, and in his presence, could not operate an emancipation of his slave. As to the judgment on the habeas corpus, it had not affirmed the mother’s right to freedom ; and if it had, the court intimated a strong doubt, whether the judgment would *have concluded the right of the owner, in that instance ; that is, under the circumstances of that case. But the court indicated its opinion, clearly enough, that the effect of the residence of a Virginia slave in Ohio, for a great length of time, with the assent of the owner ; the effect of that circumstance, in relation to that person who might thereby have become one of the permanent members of that state ; would be to confer freedom upon him. Now, this is bur case. And the previous adjudication in Griffith v. Fanny, Gilm. 143, is in point, and conclusive, that the pauper here is free. There, a slave was sold by Kincheloe her *68owner to Skinner a citizen and resident of Ohio, who held her there ; the constitution of Ohio declared her free ; and to avoid this her vested right to freedom, Skinner procured Kincheloe to make a bill of sale of her to Griffith ; who finding her in Virginia, took possession of her, and claimed her as a slave. She asserted her right to freedom acquired in Ohio, under the constitution of Ohio : and this court adjudged her free.

Daniel, for the appellee.

There are principles of peculiar interest involved in this case. Is it competent to the state of Maryland, by her laws, so to divest rights of property acquired under the laws of Virginia, and according to them never in any way devested, as not only to deprive, the owner of the property, while he and it are in Maryland, but also to deprive him of it, after he has returned and brought it back to Virginia? Can Maryland impose a forfeiture for the violation of her laws, of such universal efficacy, that, though it have never been exacted there, while the offender and the subject were within her jurisdiction, it may and must be exacted here, whenever the offender and subject come within our jurisdiction, though offending against no law or policy of our own? If it suit the policy of Maryland, to declare slaves imported into that state free, and to suffer slaves so emancipated to remain there, are our courts of justice to set them free in Virginia, with liberty *to remain here, contrary to the policy of our own laws, which require slaves emancipated to leave the state? The appellant’s counsel must be prepared to maintain the affirmative on all these points.

If Maryland may devest the right of property in a Virginia slave carried thither, every other state in the union may do the same ; so, indeed, may any foreign nation ; for, in respect to their own merely internal concerns, the U. States are foreign to each other. If Maryland may declare a slave carried thither to reside, immediately free; she, and every other state, may declare a slave free, if his owner wilfully carry or send him there, no matter for what purpose, or for how short a time. Her power is as competent to the one act of legislation, as to the other; for the constitution of the U. States (art. 4, § 2), only provides, that slaves escaping from one state into another, shall not, in consequence of any law therein, be discharged from bondage. The statute of Maryland under consideration, setting free all slaves brought there to reside, does not fix any term of residence, or allow any discrimination in respect of the citizenship or domicil of the owner ; so that if the appellant be adjudged free upon the strength of that statute, he was equally free the first hour of his stay in Maryland, as at the expiration of his twelve years residence; and he would have been equally free, if his Virginia owner had never moved 'to Maryland himself, but had only sent his slave to his farm on the other side of the Potowmac. The Maryland statute must be held effectual to this whole extent, if it be allowed to be effectual at all; that is, if it be allowed to operate in Virginia, it must be allowed to have the same effect here, as it had in Maryland.

It is not more the province of our courts of justice, to enforce this forfeiture, to inflict this punishment, denounced by Maryland' against a person violating her laws in this-particular, than any other punishment for any other act, which, having regard to her own condition, she may think it just and-politic to prohibit and punish. The general proposition would be rejected at once.. *If Maryland thought it wise to promote partial emancipation in her territory, it is not perceived how it could further even her views, or how any comity towards her would require, that we-should set slaves free in our territory; and surely, it is contrary to our policy to do so. This slave was brought back to Virginia since 1819, when the law of Virginia permitted emancipation under its own authority, only on condition, that the freedman should leave the state within twelve months (1 Rev. Code, ch. Ill, § 61) : but if this slave be set free, his right to freedom, being derived from the law of Maryland, that statute of Virginia will not embrace his case. He may remain here for life. Indeed, I do not perceive, how a person, who has-been always held in slavery in another state, though he may be justly entitled to freedom in that state, by its laws, can therefore be set free in Virginia; for, though our laws-respect the right of freedom actually enjoyed by persons belonging to any other state, they allow no emancipation of persons actually held in slavery, but such as is made under their own authority, and in conformity with their own provisions. When we say a person has a vested right of freedom, we use a phrase(for the want of one more appropriate) applicable, in its proper sense, only to rights of property. To say that a man is free, is not to say that he has a vested property in himself, but to describe his status of condition. This imperfection of language sometimes leads to fallacy of judgment: this-court corrected a fallacy of the kind, in Maria v. Surbaugh, 2 Rand. 230, 246. It seems a solecism to say, that a man actually in bondage, has a vested right of freedom. If the appellant be set free, his right to freedom will vest by the judgment of the court.

The constitution of Ohio declares, that there shall be neither slavery nor involun-. tary servitude in that state, even for a moment. In Lewis v. Fullerton, it appeared that the . mother of the plaintiff, before his birth, had been once seen at work in Ohio, in the absence of his master, indeed, and for aught that appeared without his permission ; but this court *said her working there for so short a time, for her owner’s benefit, and in his presence, would not have altered the case. By the constitution of Ohio she was free: this court, administering the law of Virginia, adjudged her a slave. The mother had been taken possession of, by one- claiming her as his slave, and upon habeas corpus in Ohio, she was set at liberty; she was then actually- free' in Ohio : but this court strongly questioned, whether, if the judgment on the habeas corpus had affirmed her right to freedom, that would have concluded the right of her owner. The mother had been emancipated by deed made in Ohio, though under an agreement that she should be brought to Virginia, and serve her master here two years: this court held the deed *69.ineffectual to emancipate her; because it was not recorded according to our law ; and because “the lex loci is to be taken, subject 'to the exception, that it is not to be enforced in another country, when it violates some moral duty, or the policy of that country, or is inconsistent with a positive right secured to a third person or party, by the laws of the •country in which it is sought to be enforced. In such a case, we are told, magis jus nostrum quam jus alienum servemus. That third party in this case is the commonwealth of Virginia: and her policy and interest are also to be attended to. These turn the ■scale against the lex loci in this instance. For want of being emancipated agreeably to the provisions of our act, the duty of supporting the old and infirm slaves would devolve upon the commonwealth. That burthen is to be borne, by the master in relation to slaves so emancipated ; that is, emancipated agreeably to the provisions of the act.” The decisions of Lewis v. Fullerton, then, and the reasoning' it is founded on, sustain my view of the present case.

The court did not, in that case, decide upon the effect of a residence of a slave in •Ohio, for a great length of time, and with the assent of the owner. It cautiously abstained from any decision upon it. And how can such a residence be material ? It cannot vary the case in principle. It is not less competent to Ohio by her constitution, to g'ive freedom *to all slaves permitted by their owners to set foot on her soil, than it is to Maryland by statute, to set free all slaves brought there to reside without fixing any term of residence. One term of residence does not ■disprove the owner’s animus revertendi more than another : Where is the line to be drawn ? In this case the owner has done more than evince the animus revertendi : he has returned.

As to Griffith v. Fanny, it does not appear from the report, that Fanny had ever been a slave in Virginia, or that Kincheloe, her first owner, was a citizen of Virginia. The transaction was a mere fraud on the law of ■Ohio. The case was not argued on any general principle : the court gave no reasons for its judgment: andLewisv. Fullerton, which was fully considered, was decided after it.

In England, it is now settled, that a person who is a slave by the laws of one country, cannot acquire freedom, by going or being carried into another country, by the laws of which he is free while there, so that if he return or be brought back (by whatever means) to his former country, he is exempt from his former bondage. Lord Mansfield’s decision of the case of Somerset (Howell’s state trials, vol. 20), seems to have made a general impression, that when once a slave got to England, he was thenceforth absolutely free. But Lord Mansfield decided nothing as to the operation o f the laws of England beyond the limits of the realm : he only determined, that by the constitution of England, slavery could not exist there ; and that, consequently, there was no authority in that kingdom, by which a slave, transported thither, could be compelled to return to a state of bondage In the country from which he was brought. Later decisions have corrected the false inferences deduced from Somerset’s

case. In Williams v. Brown, 3 Bos. & Pull. 69, it was held, that a fugitive slave, coming to England from Grenada, and afterwards returning to Grenada, was subject to his former bondage in Grenada. And in the case of The mongrel woman Grace (of which we have as yet only a newspaper report) Lord Stowcll decided, that a slave brought by her owner from * Antigua to England, and then carried back by her owner to Antigua, was lawfully held in bondage there. So, in our case, the appellant, a slave by the law of Virginia, was carried to Maryland, where he could not be lawfully held in bondage, but was in fact held as a slave there, and then brought back as a slave to Virginia, where he was born a slave, and where he might be still lawfully held in bondage.

Scott, in his reply, said, that the english cases determined no more than this, that though the law of England afford no means of enforcing the rights of the owner of a slave over his person, while there, yet it does not emancipate the slave, because he comes or is brought to England. But, in this case, the law of Maryland did expressly emancipate the slave. The owner was domiciled in Maryland : he had voluntarily submitted his slave, and himself too, to her authority. Surely, it was a competent exercise of legislative authority in Maryland, to devest her own citizen’s right of property in a slave imported in defiance of her laws, and to change the status of the slave from bond to free. In M’Michen v. Amos, 4 Rand. 142; this court held that a slave imported into and held in Virginia, contrary to our statute of 1792, acquired a perfect vested right of freedom, so that, though held in actual bondage till all penalties and forfeitures incurred under that statute, had been taken away by another statute, he was all the time free.

*

The principal case Is cited in Betty v. Horton, 5 Leigh 615; Poster v. Poster, 10 Gratt. 492.

GREEN, J.

The decision of this case in favour of the appellant, does not appear to me to involve the proposition, that in all cases and under all circumstances (except that of persons bound to service in one state, escaping to another, provided for by the constitution of the U. States), a slave born and owned in Virginia, and found in another state, may be emancipated by the laws of that state, so as to enable him to assert that right in our courts. If it did, I should wish the cause to be submitted to the consideration of a full court. My strong impression is, that such a proposition cannot be supported, and was rightly denied by this court in *Lewis v. Fullerton, where it was held, that a slave temporarily employed in Ohio, for the benefit of her master, a resident citizen of Virginia, was not thereby entitled to be considered as free in the courts of Virginia, although she might be so considered in those of Ohio.

In this case, a slave born and owned in Virginia, was carried to Maryland to reside there, and he was kept there for twelve years, by one who acquired a title to him by marriage, then being a resident citizen of Maryland, or soon afterwards removing and domiciliating himself there ; thus voluntarily becoming a permanent member of that community, and submitting himself and his property to the full force of the laws of Maryland, by which the slave was declared *70to be free ; and thereby also (according to the opinion of judge Cabell, in Murray v. M’Carty, 2 Munf. 393, in which I concur) becoming, upon the principles of natural law, and the spirit of our institutions, a citizen of that state. We are, therefore, called upon in this case, to enforce rights acquired in Maryland, under the laws of that state, against one claiming under a citizen of that state, after those rights- were vested. And I see 'no objection, in principle, to giving full effect here, to those laws, operating on the rights of persons, who were to all intents and purposes justly subjected to them, and touching the rights of no others : in this respect, the case is like that of Griffith v. Fanny, where a citizen of Virginia carried a slave to Ohio, and there sold and delivered her to a resident citizen of that state, who, in fraud of the laws of Ohio, took a bill of sale to a resident citizen of Virginia, in trust for himself, and retained possession of the slave in Ohio for two years. The court there, enforced the laws of Ohio against a resident citizen of that state, without affecting the rights or interests of any other.

The english cases cited do not touch this, in any point. They were all collated and examined by lord Stowell.in the case of The mongrel woman Grace, decided by him in 1827. And he declared their effect to be, that the laws of England did not emancipate slaves brought there, or annihilate the ^master’s rights, but afforded no .remedy for enforcing them, the relation of master and slave not being known to the common law ; and that, upon the return of the slave to the country from whence he was brought, the subsisting rights of the master might be there enforced, according to the laws of that country.

CARR, J.

Agreeing, as I do, with the general view taken of this case by my brother Green, I should not add a word, but to mark the exact extent to which X mean to go. The law of Maryland, having enacted, that slaves carried into that state for sale or to reside, shall be free ; and the owner of the slave here, having carried him to Maryland, and resided there with him for twelve years, thus becoming himself a citizen of Maryland, and voluntarily subjecting himself and the slave to the operation of her laws ; I think the right to freedom vested, and could not be divested, by the bringing him back after-wards to Virginia. »

CABERL, J-,

concurred in the opinion, that the judgment should be reversed, and judgment entered for the appellant.