#### George v. Parker. †

February, 1826.

Slaves — Removal Into State — Oath—Presumption.‡—A man removinginto this State with his slave, takes the oath required by the law of 1792; but it is doubtful, upon the evidence, whether the oath was taken within sixty days after his removal. After a great lapse of time, it will be presumed that what had been done, was done rightly.

Same — Same—Oath—Failure to Take — Effect.—But, if it does not appear, by evidence or otherwise, that the oath was taken within sixty days after the removal of the master, the slave will be entitled to his freedom, when he has remained in the State twelve months.

This was an appeal from the Superior Court of Law for Hampshire county, where George, a man of colour, brought an action to recover his freedom, against Jacob Parker, who held him in slavery. At the trial, the defendant produced a certified copy of a record from the County Court of Berkeley, in these words: “Berkeley Soil. Appeared before me Gerrard Keith, and made oath that a negro man named George, aged about two or three and thirty years of age, was not imported into this State with a view of traffic or trade, but for his own use. Given under my hand this 19th day of January, 1795.

JAMES MAXWELL.”

*This certificate was duly recorded in the County Court of Berkeley.

There was another oath taken by Keith on the same day, to the same effect, but more strictly following the terms of the law. This oath was also recorded, in the same manner as the former.

The defendant also produced a witness, who said that he could not say when Keith, the former owner, moved to Virginia, but that he knew that it was after the first day of January, 1795; but whether in 1795 or 1796, he did not know.

Upon this evidence, the defendant moved the Court to instruct the jury, that they ought to presume, after so long a time,? that that which appeared to be done was rightly done, until the contrary appeared by rebutting such presumption. The Court gave this instruction, and added, that with respect to the sixty days elapsing before the oath was made, it ought not to be presumed unless proved; and if the oath had been made before the plaintiff had remained altogether a whole year in the State, it was a sufficient compliance with the law, it being, in this respect, directory. To this opinion, the plaintiff excepted.

Verdict and judgment for the defendant; and the plaintiff appealed.

Leigh, for the appellant.

No Counsel, for the appellee.

†

The two following cases 'were accidentally ■omitted in their proper place.

‡

See principal case cited with approval on this point in Betty v. Horton, 5 Leigh 621, 626; Huston v. Cantril, 11 Leigh 162; Unis v. Charlton, 12 Gratt. 492.

§Tlie suit was brought in 1823.

*

The President absent.

February 14.

JUDGE CARR

delivered his opinion.

This is a suit brought for freedom, by the plaintiff, as having been imported contrary to the provisions of the act of 1792. By that act, slaves imported into the State, and remaining twelve months, are declared free. But it is provided, that the act shall not extend to a person removing *into the State and becoming a citizen, “if, within sixty days after such • removal, he take the oath prescribed, before some justice of the peace.” The question here was, whether that oath had been taken, and in due time. To prove this, the defendant produced a certified copy from the record of Berkeley, of an oath taken by Keith, the former owner of the slave, bearing date *263the 19th of January, 1796, and in the precise words of the law. He proved also by a witness, that Keith removed into the State after the 1st of January, 1795; but whether in the year 1795 or 1796, the witness did not know. Upon this evidence, the Court was moved to instruct the jury, that after .such a lapse of time (the suit being brought in 1823,) they ought to presume that, that which appeared to have been done, had been rightly done, until the contrary appeared by rebutting such presumption; which the Court did do; and if they had stopped here, there could be no doubt of the correctness of the instruction. The defendant would have had the benefit of the presumption, in the first place; and the plaintiff would have been left free to rebut it by any evidence he could produce.

But the Court went further, and instructed the jury, that “if the oath had been made before the plaintiff had remained altogether a whole year in the State, it was a sufficient compliance with the law, it being, in this respect, directory.” Here, I think the Judge was palpably wrong. The law is not directory at all. It leaves the importer perfectly at liberty to take the oath or not. It says that the slave shall be free; but that the law shall not extend to the importer becoming a citizen, “if within sixty days, he take the oath;” making this the condition by which he may save the forfeiture. If the importer suffer the sixty days to elapse, without taking •the oath, he cannot take it with effect afterwards. To say that he can, would make the law restricting him to sixty days, a dead letter. If the importer fail to take the oath within sixty days, I see no possible chance of his escaping the forfeiture, except by '^removing the slave out of the State before the end of the year. If he remain twelve months, and there has been no oath taken within •the sixty days, he is free, or the law is a senseless jargon.

I am clear, therefore, that the Judge misdirected the jury, and that the judgment should be reversed, and the cause sent back for a new trial, upon which no such instructions as those last above mentioned, are to be given.

The other Judges concurred.*