#### Lewis v. Fullerson.*†

December, 1821.

Slaves — Right oí Freedom — Removal from State.‡ — A slave removing from Virginia to Ohio, with the consent of his master, for a mere transitory purpose, and with the animus revertendi, does not thereby acquire a right of freedom in Virginia.

Same — Same—Establishment of. — A judgment on a habeas corpus in Ohio, in favor of the slaves, does not establish his right to freedom.

Same — Deed of Emancipation — Recordation.§—A deed of emancipation executed in Ohio, but having reference to Virginia, will be void, unless it is recorded according to the laws of Virginia.

Lewis an infant, by Milly his mother, brought suit in forma pauperis in Cabell county, against William Fullerton and Jane Rodgers, to establish his freedom. There was a verdict for the defendant, given under instructions by the court, and exceptions filed, which shewed the following case.

In March 1808, Milly the mother of the plaintiff, together with Naise her hus-' band, applied for a writ of habeas corpus in Gallia county, Ohio, to be delivered from the *illegal custody of John Rodgers, who claimed them as slaves. The writ was granted; and upon a hearing of parties and witnesses at a subsequent day, the judgment of the court was, that Milly and Naise “go hence, be discharged, and set at liberty.”

Edward Tupper a witness proves, that the day after this discharge, Rodgers came to him, and requested him to prevail on should put the question of her liberty at Milly to live with him as an indented servant for two years; that, if she would agree to do so, he would execute to her a complete deed of manumission, which rest; for now, he might possibly reverse the judgment on the habeas corpus. Agreeably to this request, the witness obtained the consent of Milly and Naise to indent themselves for two years, on R’s first making the deed of manumission, which is spread on the record. The witness examined the deed, before Naise and Milly executed the indenture for two years service.

Bithia Tupper, a witness, heard R. say, he would execute the deed of absolute manumission, if Milly and N. would agree to serve him two years; that, he always intended to emancipate Milly at his death, and had so provided by his will.

The deed of absolute manumission was executed in Gallia county, Ohio, on the 3d April, 1808; John Rodgers styling himself in it, a citizen of Virginia. It is attested by two witnesses. F. Le Clercq, one of them, deposes, that he heard R. acknowledge the execution of the deed, and that it was his voluntary act, and deed, at the time of signing, &c.

' Rodgers moreover acknowledged the execution of the deed before Brewster Higley one of the associate judges of Gallia county, which the judge certifies. The recorder of the county certifies the same acknowledgment. The clerk of the county certifies, that this recorder is the actual recorder, and that full faith is due to his certificate; and the President of the Court of Common Pleas of the county certifies, that this clerk is the actual clerk, &c. *On the trial, the admissibility of this deed as evidence was objected to:

1. Because not certified according to the Act of Congress.

2. Because, at the time of its execution, Rodgers was a citizen of Virginia, and the deed was not recorded in conformity to the statute of Virginia.

3. If offered as valid under the laws of Ohio, it cannot be received; for, there is no law of Ohio prescribing the mode of emancipation. The constitution of Ohio, declaring there shall be neither slavery, nor involuntary servitude, is spread upon *13the record. The court rejected the deed thus offered.

One of the witnesses also proved, that Milly was seen working at a sugar camp in Ohio on a Sunday, while her residence was in Virginia.

On this case, the plaintiff’s counsel moved the court to instruct the jury:

1. That, if they believed Rodgers employed Milly to work for him in Ohio, in any business not merely transitory, -before the plaintiff’s birth, they should find for the plaintiff.

3. That the record on the proceedings in the habeas corpus was conclusive of Milly’s right to freedom, unless reversed, or shown to be obtained by fraud or collusion.

3. That it was conclusive of the said right, if the jury should be of opinion it was rendered on the ground of Milly’s having been made to work for R. in Ohio; or of having been sent there in violation of the laws of that state.

4. That, if the jury shall be of opinion that Milly was resident in Ohio, and was taken therefrom by Rodgers by force or violence, they should find for the plaintiff, unless the defendants shewed a right to his services.

The proof of Lewis’s birth subsequent to the right of freedom in Milly, in whatever of all these manners, she was entitled to it (if entitled at all,) was clear; and the *court refused to give any one of the instructions moved for. There was consequently judgment for the defendant on the verdict, and the plaintiff appealed.

Gilmer, who at the request of the court argued the case for the appellant, took the following points:

Not contending that the discharge of Milly under the habeas corpus, was conclusive of her right to freedom, he said, that the fact of her having been so discharged in a state where all involuntary servitude was forbidden, together with the circumstance of Rodgers having treated with her as a free person, was at least presumptive evidence of her right to freedom at the time: That the deed of emancipation executed by Rodgers in Ohio, where there is no slavery, to a person discharged from his custody as free, purporting to confirm such right to freedom, ought to have been received in evidence. It ought to ’have been received, because its execution is proved by a’ deposition regularly taken in the cause; the deposition too of a subscribing witness, the proper testimony in all such contracts. He did not contend, that it was admissible as a certified deed, because the certificates were not in conformity with the Act of Congress: Nor did he insist that it would have been admissible, if executed in Virginia,_ without strictly complying with the provisions of the statute of the state regulating the mode of emancipation. Givens v. Mann,(a) was a complete - authority on this point, he conceded.

His view of the case, he alledged, freed it at once from all these objections, and would not at all violate the spirit of the rigorous statutes on the subject of emancipation. Since Lewis, even if entitled to freedom, was subject to be removed from the state by the act. 1 Rev. Code, p. 437, § 64. And the policy of the act being to prevent the increase of negroes, free or bond within the state, to declare Lewis free, and have him transported, would be *more in obedience to the policy, of the statute, than to condemn him as a slave, and suffer him to remain.

The court, however, will not perhaps be at liberty to go into considerations of state policy, farther than they are forced upon it, by the obvious intent of the act. And he said, that the legislature of Virginia had never declared its will on the subject of emancipation of slaves, whether by citizens or others, in cases in which such emancipation was complete and perfect by what is done between the parties abroad. Such cases can no more be subjected to the control of the local legislation of Virginia by the general principles of law, than any other case of contract. Here is a contract executed in Ohio, and a right is asserted under it in Virginia; the question then arises, whether the contract is to be expounded by the laws of Ohio where it was made, or those of Virginia, whose courts are asked to enforce it. The cases in the English authorities are numerous to shew, that contracts entered into between British subjects-in foreign countries, intended to be executed abroad, will be interpreted neither by the law of the country of the domicile of the parties, nor of that whose tribunals are asked to coerce the fulfilment; but that the lex loci contractus will govern. On this principle, Indian interest is allowed on contracts entered into and intended to be executed in India. This principle is familiar, and need not to be insisted on.(b) The common law has, in this, adopted the principle of the civil law, contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit.(c) And where no place is specially assigned for the execution of the contract, the place of its date must be intended to be that in which it is to be executed.

In the case before us, the contract was made in Ohio, and if the law of Ohio govern its interpretation, the contract, is valid; for by the laws of that state, all involuntary *servitude is prohibited, and consequently, no statute was required to give the right, or prescribe the mode of emancipation.

Though it be true, that the lex loci contractus will govern the interpretation of contracts, it is equally so, that a contract made in one place, but by express stipulation to be executed in another specified place, must be controlled by the laws of the latter, as is shewn by the passage quoted from the civil law. But it will be observed, that the deed of emancipation was complete and perfect on its execution: it had nothing farther in prospect; *14and consequently the' indenture for two year’s service, which was the consideration in part on which the deed of emancipation was executed, cannot control this last mentioned deed, so as to make it also have relation to Virginia, as the place of its execution: it can no more control it, than an agreement to pay a sum of money in Virginia in consideration of the manumission would make such deed have reference to the laws of Virginia as, the place of its execution. In this case, the consideration is already passed. To give such an interpretation, would in this case convert the deed of emancipation into a naked instrument of fraud by Rodgers; a mere device for decoying into' Virginia a person, who in Ohio had been declared to be free, and with whom he treated as a free person. The deed of emancipation, too, was a valid deed between the parties without any consideration at all: Rodgers and all claiming under him are estopped from denying its validity; much more, then, ought he be prevented from setting up his own fraud to vitiate his own act, done freely and voluntarily.

To say, that a deed made abroad under such circumstances is void, is to assert, that no native Virginian can, in any country on earth, emancipate a slave in such country, so as to entitle him to freedom in Virginia; except by a literal compliance with the statute of Virginia: which would be contrary to every general principle of law; and there is nothing in the statute on this subject to distinguish *it from other cases. The deed then ought to have been admitted as a contract, or voluntary gift, on the proof of its execution; as any other contract would have been; and being admitted, it is conclusive against Rodgers and all claiming under him: the judgment ought then for this reason to be reversed. He declined to press the other points, thinking this the principal question on the merits.

*†

The reporter is indebted for the report of this case, to the gentleman who argued it. It was argued before the appointment of the present reporter. — Note in Original Edition.

*†

†For monographic note on Conflict of Laws, see end of case.

‡

Slaves — Right of Freedom — Removal from State.— As holding that a slave temporarily employed in Ohio, for the benefit of her master, a resident of Virginia, is not thereby entitled to be considered as free in the courts of Virginia, although she might be so considered in those of Ohio, the principal case was cited in Hunter v. Fulcher, 1 Leigh 181. To the same point, the principal case is cited in Foster v. Fosters, 10 Gratt. 492.

§

Same — Deed of Emancipation — Recordation in wrong Court — Effect.—A deed of emancipation not recorded in the proper court, but in some other, gives no title to freedom, until properly recorded. Sawney v. Carter, 6 Rand. 175, citing principal case. See, on this subject, the principal case also cited in Moses v. Denigree, 6 Rand. 564; Thrift v. Hannah, 2 Leigh 312. Proof or acknowledgment in court is to an instrument of emancipation, what delivery is to a deed at common law. It is the final requisite, without whieh all others stand for nothing. Thrift v. Hannah, 2 Leigh 317, citing principal case as establishing the proposition.

(a)

6 Munf. 191.

(b)

 1 Bos. and P. 138. 2 Bos. and P. 263. 1 Ba. air. 331.

(c)

 44 Dig. ti. 7, 1, 21.

JUDGE ROANE,

delivered the opinion of the court:

The court is of opinion, that there is no error in the opinions of the Superior Court, impeached by the 3d and 3d exceptions. The reasons in support of those opinions, are so clear and self-evident, that they need not be adverted to.

Nor is there any error in the other opinions of that court, objected to by the appellant, and which go to the merits of 'fifs' title.

The appellant claims his right to freedom, on three grounds: 1st, on the right to freedom alleged to have been acquired by his mother, prior to his birth, by having sojourned within the state o‘f Ohio, and as is further alleged, been there employed by her master: 2dly, on the ground that her right to freedom was, prior to ins birth, established by the judgment on the writ of habeas corpus stated in the record; —and 3dly, he claims it under the deed of emancipation contained in the proceedings; and which was also executed prior to the birth of the appellant. It is readily conceded, that if his mother’s right to freedom was valid and complete, prior- to his birth, on any of these grounds, his right to freedom follows as -a necessary consequence.

Under the first enquiry, we must throw entirely out of view the subsequent residence of the mother within the state of Ohio, with the alleged consent of Rodgers her former master. Whatever may be the effect of a residence therein, for a great length of time, and with the assent *aforesaid; whatever may be the effect of this circumstance in relation to a person who may thereby have become one of the permanent members of that state, the residence now in question is of a far different character.

There is no evidence in this case of the mother’s residence within the state of Ohio, prior to the appellant’s birth, but that she was once seen, on a Sunday, working at a sugar camp therein, in the absence of her master, and without any evidence that it was with his permission. In reference to this evidence, the court below was asked to instruct the jury, that if they should find that she was employed by her master within that state, in making sugar, or any other local service, not merely transitory, and for however short a time, they must find a verdict for the plaintiff. The judgment of. the superior court refusing to give that instruction was, in our opinion, entirely correct. Such an occupation for a short time, and even for the benefit of the master, and probably in his presence, could never operate an emancipation of his slave. It could not so operate, when the animus revertendi strongly existed in him, both in relation to himself, and to his slave. There is indeed but a shade of difference between such a residence as this, (if indeed it can be called a residence,) and the mere right of passage through the state: and such a construction, as that now contended for, would whittle down to nothing the right of the citizens of each state, within every other state guaranteed to them by the constitution. Such an occupation cannot be said to carry with it evidence of the assent of the master, that she should cease to remain his property, and become a member of the state of Ohio, without which the regulations of that state on the subject of emancipation cannot attach.

As for the 2d ground of claim, under the judgment upon the habeas cprpus, it has been truly answered, that that judgment has not affirmed the mother’s right to freedom. Even if it had, and this mode of proceeding was legalized by the laws of that state, (as it seems not to be by *the laws of this,) in favour of a slave against his master, those laws are not found in the case before us: and even if they were, it might well be questioned whether the judgment aforesaid could have concluded the right of the master in the present instance. The right of our citizens under the constitution to reclaim their ' fugative slaves from other states, would be nearly a nullity, if that claim their fugitive slaves from other a proceeding like the one in question; a proceeding of so extremely summary a *15character, that it affords no fair opportunity to a master deliberately to support his right of property in his slave. Such a proceeding ought not, therefore, to be conclusive on the subject.

■ As to the deed of emancipation contained in the record, that deed, taken in connexion with the evidence offered to support it, shews, that it had a reference to the state of Virginia. It is stated to have been made by John Rodgers a resident of the state of Virginia; and the testimony shews, that it formed a part of a contract whereby the slave Milly was to be brought back, (as she was _ brought back,) into the state of Virginia. Her object, therefore, was to secure her freedom by the deed, within the state of Virginia, after the time should have expired, for which she indented herself, and when she should be found abiding within the state of Virginia.

If then this contract had an eye to the state of Virginia for its operation and effect, the lex loci ceases to operate. In that case it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws, to effectuate an emancipation, for want of a due recording in the county court, as was decided in the case of Givens v. Mann in this court. It is also ineffectual, within the commonwealth of Virginia, for another reason. The lex loci is also 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 that country, in which it is sought to be enforced. In such a case we are told “magis jus nostrum, quam jus alienum servemus.”(d) That third party, in this case, is the commonwealth of Virginia: and her policy and interests are also to be attended to. These turn the scale against the lex loci in the present instance. For want of being emancipated agreeably to the provisions of our act on that subject, the duty of supporting the old and infirm slaves would devolve upon the commonwealth. That burthen is only to be borne by the master, in relation to slaves “so emancipated;” that is, emancipated agreeably to the provisions of the act. 1 Rev. Code, p. 434. F,ven yet, and notwithstanding a late alteration of the law upon this subject, that burthen must be borne by the commonwealth, at least for a time.

For these reasons, we are unanimously of opinion to affirm the judgment.

(d)

 Hub. 2, tom. lib. 1, tit. 3; 2 Fonb. *Hi.*