#### *Betty and Others v. Horton.

July, 1833,

Lewisburg.

(Absent Brooke and Green, J.)

Slaves — Suit for Freedom — Importation into Virginia Contrary to Statute* — Case at Bar. — In a pauper suit by persons held in bondage to recover freedom, the jury finds, that Blake, a native of Massachusetts, came to Virginia, married here, and acquired by his wife two female slaves ; returned to Massachusetts in 1797, carrying his wife and family with him and these two slaves; settled and entered into mercantile business at Boston, and declared his purpose to spend his life there ; but, in 1798, he returned with his family to Virginia, and brought back with him those two females, as his slaves, and thenceforth continued to hold them here as slaves; and the suit by them and their children for freedom, was brought in 1828 ; Held, 1. Blake was not a citizen of Virginia, but a citizen of Massachusetts, domiciled there, in 1798, when he imported the plaintiffs into Virginia, and they are entitled to their freedom, for being imported by him contrary to the provisions of the statute of 1792,1 Old Rev. Code,' ch. 103, § 2, 3, 4: and 2. tho’ the jury might, from the length of time, have inferred due compliance with the requisitions of that statute, at the time of importation, yet as the jury had not found such compliance, the court could not presume or infer it.

Suit tor Freedom — Plaintiffs Free by Constitution of State from Which Imported — Effect.—It seems, that Lhe two females carried by Blake to Massachusetts, were free persons by the constitution of that state, as expounded by her judicial tribunals ; and the plaintiffs would, on that ground also, be entitled to recover their freedom.

This was a suit in forma pauperis, for the recovery of freedom, brought in 1828, by Betty, Pleasant, and their children against Horton, in the circuit court of Kanawha. The pleadings were in the usual form, and the issue made up on the question, whether the plaintiffs were bond or free?

The jury found a special verdict, stating, that one Blake, who was born in the state of Massachusetts, when a young man, removed to the county of Southampton, Virginia, married there, and received with his wife two slaves, the plaintiffs Betty and Pleasant. That some time after his marriage, and in the year 1797, he left Virginia with his *wife and child, carrying with him those two slaves, then small girls, and arrived at Boston in July 1797. That having spent about three months in visiting his friends and relations, he rented a house in Boston in which he and. his family resided, opened a store under the firm of E. G. Blake & Co. and declared that he intended to spend the rest of his days there. That he continued to reside and carry on business at Boston, till July or August 1798, when, his business not being prosperous, and his wife being in bad health, he disclosed his intention of returning to Virginia; and, closing his business, he left Boston for Virginia, in September 1798, bringing with him his family, and the two plaintiffs Betty and Pleasant. And that Betty since her return has had two children. The constitution of Massachusetts was also found as part of the verdict. And the question referred to the court was, whether upon this state of facts the plaintiffs were entitled to their freedom or not?

The circuit superiour court of Kanawha held, that they were not free, and gave judgment for the defendant. A petition was presented to this court, on behalf of the paupers, praying a supersedeas to the judgment; which was allowed.

Peyton and Johnson, assigned counsel for the plaintiffs in error,

argued, 1. That, supposing Blake, upon the facts found in the special verdict, — that is, by his merely removing to Virginia and taking a wife here, without any intention found of permanently abiding here, — acquired a domicil in and became a citizen of Virginia (which, however, they should, if it were necessary, deny); yet, by returning with his family to Massachusetts, where he was born, and settling there, with the declared intention of spending the rest of his days there, he wholly abandoned his Virginia domicil, resumed the domicil of his birth, and was a citizen of Massachusetts, 2 Kent’s Comm. 346. He resided fourteen months at Boston, with intent to reside permanently; and that, by the constitution of Massachusetts would have made him a citizen of that state; even though he had been *born a citizen of Virginia. And by the constitution of Massachusetts, too, as early expounded by her courts of justice, and uniformly administered, the two infant slaves, which he carried from Virginia to Boston, and kept with him during his residence there, were free; 2 Kent’s Comm. 205; Winchendon v. Hatfield, 4 Mass. Rep. 128. And Blake being a citizen, of Massachusetts, domiciled there, and having volunta*233rily carried these persons thither, kept them there for fourteen months, and subjected himself and them to the jurisdiction of that state, his rights' and theirs were justly to be determined by the laws of Massachusetts. These people then, being thus free persons in Massachusetts, could not be enslaved by being brought to Virginia; Griffith v. Fanny, Gilm. 143; Hunter v. Fulcher, 1 Leigh 172. But 2. they maintained, that the plaintiffs were entitled to freedom by the provisions of the statute of 1792, concerning slaves, free negroes and mulattoes.* For the *special verdict finding that the plaintiffs were imported into Virginia by Blake, and finding in effect that Blake was not a citizen of Virginia and omitting to find any compliance with the provisions of the 4th section of the statute, it must be taken, that they were imported contrary to the statute; and having been kept here more than one year, they were by force of the statute free.

Summers and C. Baldwin, for the defendant,

said, 1. That the provision of the constitution of Massachusetts, which (it was said) the courts of that state had expounded into a general act of emancipation, was exactly like the declaration in our own bill of, rights; the language of the former being “that all men are born free and equal, ” and that of the latter, ‘ ‘that all men are by nature equally free and independent. ’ ’ And admitting- the authority of the judicial decisions of Massachusetts, as to the effect and meaning of this provision, so far as the people and the policy of that state were concerned, they said, the interpretation put upon the provision there, could not be admitted here, without acknowledging, that our own understanding of the like provision in our bill of rights, was erroneous, and shaking the tenure of all slave property. In truth, however, the judicial ^'exposition of the constitution of Massachusetts, was not found in this special verdict; only the constitution itself was found; and the court could not assume that there was any such judicial exposition of it. But, supposing there was such judicial exposition of the constitution of Massacusetts, and that it was right, so far as it affected the status of the plaintiffs while remaining there, it did not follow, that, when they were brought back to Virginia, the law of Massachusetts followed them, and was of force to make them free here, —and free too from their birth, — for that would be the effect of declaring them free in this state, by force of the law of Massachusetts. It had been decided, that the laws and judicial decisions of the state of Ohio, declaring a person free, if inconsistent with the laws and policy of our own state, could not be respected and enforced here; Lewis v. Fullerton, 1 Rand. IS. Blake was the lawful owner of these slaves in Virginia in 1797; he carried them with *him to*Massachusetts, by the laws of which country (let it be admitted) they could not be lawfully held as slaves; kept them there little more than a year; and then brought them back to Virginia, where he had lawfully acquired them as slaves, and continued to hold them as slaves, under our laws: they were slaves here, notwithstanding the residence of their owner, with them in his possession, in Massachusetts. Williams v. Brown, 3 Bos. & Pull. 69, and the case of The Mongrel woman Grace, decided by lord Stowell. 2. They contended, that these people were not emancipated by force of the statute laws of Virginia. The provisions of the statute did not apply to the case of a citizen of Virginia, being then the owner of slaves in another state of the union, and removing such slaves hither; and it authorized citizens of another state removing to and becoming citizens of this, to import slaves with them, provided they complied with the provisions contained in the 4th section of the statute. Then, by the statute of 1796, any citizen of the U. States residing or owning lands in this state, who had carried slaves born here to another state, and had not sold them there, might lawfully bring them back again to *Virginia, and such slaves were not entitled to freedom on that account. Now, they said, the special verdict found, that Blake removed to Virginia, —meaning that he migrated to this state, in the general sense of that word, — that he came here to live here; it found, that he married in Virginia; and then, without finding how long he remained, the verdict found, that he left Virginia, and went back to Massachusetts. He was, then, domiciled in Virginia, and so became a citizen of *234this state. When he went back to Massachusetts, and resumed, for a brief space, his native domicil, he did not thereby so absolutely lose the citizenship of Virginia he had previously acquired, that, upon his subsequent return to Virginia, and abiding here, he was no longer a citizen of this state, in virtue of his first acquisition of that character. He was a citizen of Virginia, who had carried Virginia born slaves from Virginia to Massachusetts, held them in his own service there, and then brought them back to Virginia. But, even if he had not been a citizen of Virginia, but a citizen of Massachusetts, at the time of his second migration to this state, he'had a right to bring these persons, Virginia born slaves as they were, back with him to Virginia. And after the lapse of thirty years from the time they were so brought back to Virginia as slaves, the court must presume omnia recte acta; that they were lawfully brought back; that Blake complied with all the requisitions of the 4th section of the statute of 1792, to entitle him to import and hold them as slaves; and that he lawfully continued to hold them in slavery, which was the status in which they were born. Abraham v. Matthews, 6 Munf. 159; George v. Parker, 4 Rand. 659.

*

Special Verdict — Inferences by Court. — Although it is an inflexible rule that the court upon a special verdict cannot confer other facts from those found, yet it is the province of the court to make all legal inferences from the facts found in the verdict. Layne v. Norris, 16 Gratt. 242, citing the principal case, Robertson v. Ewell, 3 Munf. 1; Brown v. Ferguson, 4 Leigh 37, Charlton v. Gardner, 11 Leigh 281, and Purcell v. Wilson, 4 Gratt. 16.

*

1 Old Rev. Code, ch. 103, § 2, 3, *4,*Pleasants’s edi. pp. 186.7. The provisions of the statute are as follows :

“§ 2. Slaves, which shall hereafter be brought into this commonwealth, and kept therein one whole year together, or so long at different times as shall amount to one year, shall be free. § 3. Every person hereafter importing slaves into this ■commonwealth, contrary to this act. shall forfeit and pay the sum of 200 dollars for every slave so imported ; and every person selling or buying any such slaves, shall in like manner forfeit and pay the sum of 100 dollars for every slave so sold or bought; one moiety of which forfeitures shall be to the use of the commonwealth, and the other moiety to him or them that will sue for the same, to be recovered by action of debt or information in any court of record. § 4. Provided, That nothing in this act contained shall be construed to extend to those who may incline to remove from any of the U. States, and become citizens of this, if within sixty days after such removal he or she shall take the following oath before some justice of the peace of this commonwealth : “I, A. B. do swear, that my removal into the state of Virginia, was with no intent of evading the laws for preventing the further importation of slaves, nor have I brought with me any slaves, with an intention of selling them, nor have any of the slaves which f have brought with me, been imported from Africa, or any of the West India islands, since the first day of November, one thousand seven hundred and seventy-eight. So help me God’'--Nor to any persons claiming slaves by descent, marriage or devise ; nor to any citizens of this commonwealth, being now the actual owners ■of slaves within any of the U. States and removing such hither ; nor to travellers and others making a transient stay, and bringing slaves for necessary attendance, and carrying them out again.”

The statute of 1796, Id. ch. 2«i, pp. 364, 5, provided, “that it shall and may be lawful for any citizen of the IT. States, residing in or owning lancis within this state, who has carried or may carry any slave or slaves born within this state, into any other state, and who has not sold or hired, or shall not hereafter sell or hire out such slaves, to bring him, her or them, back again into Virginia, without incurring any penalty therefor, nor shall such slave or slaves be entitled to freedom on that account. Provided *always,*That if any such slave or slaves be entitled to freedom under the laws of that state, to which he. she or they may have been or shall hereafter be removed, such right shall remain ; any thing In this act notwithstanding.” — Note In Original Edition.

CARR, J.

I think it clear, upon the findings in this special verdict, that Blake never lost the character of citizen of Massachusetts which he had by his birth. He removed to Virginia, married a wife here, received the two slaves with her, and returned, with his wife and child, and the two slaves, to Massachusetts. This might all have been done in a residence of twelve months. The jury finds no declaration *made by him of any intention to make a permanent settlement in Virginia; no house or land bought; no business followed; nothing to distinguish him from a sojourner in the land. He married a citizen of this state, to be sure; but, it would seem, only to take her to his own country. In Murray v. M’Carty, 2 Munf. 393, it was decided, that a Virginian marrying in Maryland, going thither, with the declared intention of residing in the state, and living there, between three and four years, did not lose his citizenship here. In Barnett v. Sam, Gilm. 232, Mrs. Teas removed to North Carolina, and resided there three years; yet on her return, it was decided, that “never having renounced her character of citizen of Virginia, nor acquired that of citizen of North Carolina, she did not come within the fourth section of the statute of 1792. If these cases are authority (and they have never been overruled), they decide the point, that, under the finding here, Blake never ceased to be a citizen of Massachusetts. He carried the slaves to Boston, with the declared intention of a permanent residence there; rented a house; opened a store; and, his business disappointing him, and his wife’s health failing, he returned, after a residence of about fourteen months, to Virginia. I am clearly of opinion, that on thus returning, and bringing the slaves with him, he came fairly within the general prohibition of the statute of 1792, and could only protect himself, by going before a magistrate within sixty days, and; taking the oath thereby prescribed.

It was said, that after the great lapse of time which has taken place, it ought to be presumed, that every thing was properly done which the law required. This might have been a proper subject for a motion to-the court to instruct, or a fair argument to the jury, who were at liberty to draw conclusions from facts: but it is too well settled to be questioned, that upon a special verdict, the court can presume nothing. See Abraham v. Matthews, 6 Munf. 159; M’Michen v. Amos, *A*Rand. 134; George v. Parker, Id. 659.

Thinking the point, on which I have rested my opinion very clear, I have not noticed the effect, on this subject, of *the constitution of Massachusetts and their judicial construction of it. I will remark, however, that my impression is, that from this source, as well as that I have relied on, the paupers derive a good claim to their freedom. But it is a point which I have not been able (for the want of books) so thoroughly to investigate as I could wish.

I am of opinion, that the judgment should be reversed, and judgment entered for the plaintiffs in error.

CABELL, J-, concurred.

TUCKER, P.

The plaintiffs in this case rest their right to freedom, 1. upon the constitution and laws of the state of Massachusetts, and 2. upon the statute law of Virginia. It is contended, that Betty and Pleasant, by being removed by their master from Virginia to Boston, in 1797, became free under the former; or if not, that their removal back again to Virginia, after they had lost the character of Virginia slaves, gave them a right to freedom under the statute of 1792, at that time in force.

As to the first; the jury has found the constitution of Massachusetts, containing a provision, like our own bill of rights, declaring that 1 ‘all men are born free and equal.’’ This, it would seem, is the only provision in the laws or constitution of that state, upon this interesting subject. Looking to the actual state of that commonwealth, and knowing, as we all know, that its slaves were few in number, at the time of the adoption of its constitution, we should be disposed to take this declaration less as an abstraction, than we must regard that which is contained in our own bill of rights. We should readily extend it to mean at least as much as the common law, which does not recognize slavery as reconcileable with a residence upon birtish soil. I am inclined to think, however, it may go farther. The common law, I take it, is to be considered rather as declaring the mere status of the party, while in Great Britain, than as annulling the bond by which he is fettered, unless he asserts his right and establishes it by the adjudication of a competent tribunal. *Then, indeed, it passes in rem adjudicatam; and, upon well received principles of national law, this decision upon the right, by a tribunal having complete jurisdiction over the subject, is conclusive every where. But, un*235less the right of the slave is so asserted and established, the common law has not the effect of knocking off his shackles; nor can it be invoked as his protector, upon his return to that country where he had formerly been a slave. Such, I incline to think, is the substance of the cases of Williams v. Brown, 3 Bos. & Pull. 69, and of “The Mongrel woman Grace,” decided by lord Stowell, and mentioned by counsel and by judge Green in Hunter v. Fulcher, 1 Leigh 179, 181. In Massachusetts, however, it seems, that the constitution of the state must have been interpreted to have a more extensive operation, as it appears to have been decided, that the issue of a female slave, though born prior to the constitution, was free; 2 Kent’s Comm. 205. If this be so, the constitution has received an interpretation, which goes to divest the title of the master, to break the bonds of the slave, and to annul the condition of servitude. It emancipates and sets free, by its own force and efficacy, and does not await the enforcement of its principles by judicial decision. It is more operative than the common law, and more resembles the effect of our statute declaring free all slaves imported contrary to law. But this depends upon the construction of the constitution of Massachusetts by its courts, which we would of course respect and follow, if we were sufficiently advised of them. But without their reports here, we should, perhaps, venture too far to rest our decision upon the Massachusetts constitution. It is not deemed necessary. The case may be decided upon the Virginia law.

By the statute of 1792, it was declared (and the provision was in force at the time of this transaction), that: “slaves which should thereafter be brought into this commonwealth, and kept therein one whole year, or so long at different times as should amount to one year, should be free. ’ ’ Prom the operation of the statute were excepted “those persons who might incline to remove from any of the U. States and become *citi2ens of this, upon taking certain oaths within a limited time.”

In this case, it appears, that Blake was a native of Massacuhsetts, who, when a young man, removed to Southampton, Virginia, married, and received the negroes Betty and Pleasant with his wife. It might, perhaps, well be questioned, whether by this finding we should be justified in inferring that Virginia became the domicil of Blake, as it appears, that, some time after his marriage, he took his wife and slaves to his native state, and there went into business. Admit, however, that he did acquire a domicil in Virginia, we next find, that he left this state in 1797, taking with him his wife and child, and the plaintiffs, then small girls. He arrived in Boston in July 1797, where he spent three months in visiting his friends, after which he rented a house, in which his family resided, opened a store, and declared his intention to spend the rest of his days there ; and there, accordingly, he continued to reside and carry on business until July or August 1798. This constituted a complete domicil in Boston. Whether Blake ever had a domicil in Virginia or not, it is very certain, that no evidences or declarations are found of his intention to make it the place of his permanent abode; and when, therefore, he returned from this absence, — of what duration we know not, —-to the land of his nativity, which he does not appear to have renounced, and declared his intention of spending his life there, and set up an establishment and a mercantile concern, I cannot but consider him as reinvested, to all intents and purposes, with his original character of a man of Massachusetts. To Virginia he was no longer bound. He had owed her a temporary allegiance for temporary protection, but the tie was dissolved, so soon as he returned to his native state, and settled himself in business, with a design of permanent residence

As to the length of time of his residence in Boston, that, it would seem, is unimportant, except as an index of his real purpose. “There is no fixed or definite period of time,” says chancellor Kent, “requisite to create the domicil of a party. The residence to create it, may be long or short, according *to circumstances. It depends on the actual or presumed intention of the party.” 2 Kent’s Comm. 346, in note. As soon as the act is unequivocally done, and the intent clearly demonstrated to fix the residence or domicil of the party, so soon do all the consequences flow from the establishment of that domicil. From the moment the intent of Blake was shown by the correspondence of his acts with his declared intention to make Boston his permanent residence, he became at once domiciliated there. And if he had removed the next day to Virginia, although that might have thrown doubts over the sincerity of his previous declarations, it would not have changed his status, for the time being, if we could rest assured that those previous acts and declarations had indeed been bona fide.

Blake, then, having become an inhabitant of Boston, resident, and domiciliated there, in about twelve months, is induced by the state of his wife’s health, to change his plans, and come to Virginia once more.

Having acquired a residence or domicil in Boston, he was in the strictest sense of the words of our statute, “a person desirous of removing from one of the U. States.” But be this as it may, when he came to Virginia with his slaves, their destiny having been linked to that of their master, and they having acquired like him a Boston home, he was bringing into Virginia, slaves which had ceased to belong to this commonwealth. This was directly within the law.

The verdict is not very definite as to the length of time the slaves were or have been in Virginia, all together. But in M’Michen v. Amos, 4 Rand. 134, it was very justly said, that the same strictness, as to form, will not be'required in actions for freedom as in other cases. Kor, the master is deeply interested in not prolonging the litigation by mere technicalities. Here we find, that Blake left Boston for Virginia in 1798, bringing the slaves with him; and we find, that since her return, Betty has had two children; and she is *236“here, moreover, when she exhibits her petition thirty years afterwards. We must take it, then, that she was brought back to Virginia, and has been kept here *more than one whole year; and if so, she is free, unless her master complied with the law.

There is no question, that after twenty years a jury may presume, that the requisitions of this statute have been complied with, if, in the meantime, there has been no suit for freedom, and if there be no circumstances to repel the presumption. 5 Munf. 542; 6 Munf. 159; 4 Rand. 141, 659. In all these cases, the principle is clearly recognized. But the jury alone can presume this fact. It is like most presumptions, liable to be rebutted, and therefore cannot be made by the court. In this case, the verdict is silent, and the fact must therefore be taken to be against the defendant.

The consequence is, that the plaintiffs are entitled to their freedom, and to a judg ment in their favor upon the verdict of the jury.

Judgment reversed, and judgment entered for the paupers.