On HABEAS CORPUS, of negro Richard.
SAME against MATTHIAS CRAMER
On HABEAS CORPUS, of negro Phebe.
Instruments of manumissions must be executed conformably to the act of 14th March, 1798.,Rev. 369.
The claims of freedom of the above named negroes, were submitted to the
court on the following state of the case.
The claims of freedom in the above causes, are founded on two manumissions,
purporting to be signed, one by John Emmons, and to bear date on the 16th
day of June,,1803, declaring the freedom of the negro Richard, otherwise
called Dick. And the other by John Emmons, and Mary his wife, and to bear
date on the same day, declaring the freedom of negro Phebe, (prout the
said manumissions produced.) The defense set up, questions the validity,
in point of law, of the said manumissions; and also, that the said manumissions
were respectively obtained by fraud, or by forgery.
Now it is agreed that the question of law arising on the said manumissions,
whether effectual to enable the negroes named in the said manumissions,
to a discharge on the present habeas corpus, as free persons, be
submitted to the Supreme Court, on an argument in bank, at the ensuing
September Term. If the court shall decide against the validity of the said
manumissions, in point of law, it is to conclude the claims, and be final
on the question of the freedom of the said negroes. If the court shall
decide in favor of the validity of the said manumissions, in point of law,
that question is likewise to be considered as concluded; but the defendants
are nevertheless to be entitled to the full benefit of their other ground
or grounds of defense, namely, on the fraud or forgery of the said manumissions
; and said causes are to be tried thereon, at the next circuit, without
any manner of prejudice to the said questions of fraud or forgery, and
the verdict of the jury thereon to be conclusive. Dated in Hunterdon circuit,
May 8, 1805.
I approve of the above,
[Signed,] THOMAS P. JOHNSON.
I agree to the above,
[Signed,] G. C. MAXWELL.
I agree to the above,
[Signed,] G. CRAFT, Att'y for Pros.
This cause was submitted without argument, in March Term last; and in this
term, the court gave the following opinion:
KIRKPATRICK, Ch. J. -- These causes have been submitted without argument.
The case stated for the opinion of the court, places the claim of these
two black people, to their freedom, upon two certain deeds of manumission,
bearing date on the 16th of June, 1803, the one executed by John Emmons,
for the manumission of Dick; and the other by John Emmons, and Mary his
wife, for the manumission of Phebe. These deeds were not executed in the
presence of two witnesses, as the act. of 1798 requires; and for this cause
alone, their validity is questioned; and that question is now submitted
to the consideration of this court.
The defendants seem principally to rest upon the decisions heretofore made,
on the acts of 1713-14, and 1769. The act of 1713-14 recites that it is
found by experience that free negroes are an idle slothful people, and
prove very often chargeable to the place where they are; and, therefore,
enacts that every master manumitting his slave shall give security to the
Queen, in the sum of 200 pounds, that he will pay yearly to the slave so
to be manumitted, the sum of 20 pounds?-and that upon refusal so
to do, the said manumission, shall be void, and of none effect.
The act of 1769 provides that if any master shall manumit his slave, he
shall give bond to the King, in 200 pounds, with condition to indemnify
the township against all charges of maintenance, in case his slave so to
be manumitted, shall become chargeable; and that on failure thereof,
manumission shall be utterly void, and of none effect.
Now, upon these acts, it has repeatedly been determined, that a manumission
shall be good against the master manumitting, and his representatives,
notwithstanding he shall have refused to give the bond prescribed, and
notwithstanding the express words therein contained, " that on failure
thereof, such manumissions shall be utterly void, and of none effect."
The giving of the bond, &c., being manifestly intended for the benefit
of the township, and for that only, the court so construed the act, as
to make this particular intent limit the generality of the words in the
last clause; and consequently it was holden, that though in all controversies
between the township and the master, on the subject of maintenance, the
manumission, without such bond, should be void; yet, in all controversies
between the person manumitting and the master, it should be valid, and
have its full force and effect. The object of the legislature was to secure
the townships against the expense of maintenance; and this it was thought
was effectually done by this construction of the acts.
But inasmuch as the manner of manumitting was not prescribed by those acts,
and the courts, in favor of liberty, had gone a great way in supporting
manumissions, which were not very precise and determinate; and inasmuch
as frequent applications were made for discharges, on the ground of loose
conversations, conditional promises, and constructive bargains, to the
no small inconvenience and expense of those who had lawful right; therefore,
the Legislature, in 1798, thought proper to take up the subject anew, and
expressly enacted, that every negro, Indian, mulatto or mestee, within
this State, who at the time of passing the act, was a slave for his or
her life, should continue to be such, unless manumitted and set free in
the manner prescribed by law. And in a subsequent section of the same act.,
this manner is expressly prescribed. It is to be by writing, under hand
and seal, executed in the presence of at least two witnesses; and upon
such instrument of manumission being so executed as aforesaid, such slave
shall be deemed and adjudged to be free.
When I consider the subject matter before the Legislature, at the passing
of this act; when I consider the loose grounds upon which applications
for a discharge were frequently made, and the expense and vexation consequent
thereupon; when I consider that these applications were eagerly supported,
and sometimes but too easily listened to; when I consider that they had
really become a subject of public complaint, at least in one part of the
State; and when in this view of the subject, I see the Legislative enact
that every slave for life, shall continue to be a slave for life, unless
manumitted in the manner prescribed by law; and when I see the same Legislature,
immediately after, prescribe that manner, saying that it shall be by writing,
under hand seal, executed in the presence of two witnesses at least; I
hold myself bound to say, that the instruments in question cannot prevail.
In my opinion, therefore, judgment must be for the defendants.
ROSSELL, J. -- Both these cases appear to rest on the same ground, viz.:
two instruments of writing, under the hand and seal of the master,
and in one case of the mistress, bearing date June, 1803, declaratory of
the intentions of said master and mistress, to set free their slaves Dick
and Phebe. It is contended that these deeds not being executed in the presence
of two subscribing witnesses, as the act of our Legislature now in force
directs, are "void to all intents and purposes;" and so far as respects
the State and the master, or his representatives, this declaration is undoubtedly
correct. The act prohibits the manumission of a slave above forty years
of age, without security to the township for his maintenance. Yet, may
not the master voluntarily relinquish all claim to the personal service
of his slave above that age, for a day, a year, or a life? That he might
so do, has been frequently decided, under the former laws of this State;
and it is now to be considered, whether he may not under the present.
The act of 1713-14, directed the mode by which slaves should be set free.
The act of 1769, prescribed a different mode of manumission; but both of
them declared that all attempts to set slaves free, not conformable to
the directions therein laid down, should be " utterly void, and of none
effect." The present. act, passed in 1798, declares that all persons
slaves, at the passing of that law, should continue to be so, unless manumitted
in the manner herein prescribed; and the 26th section provides, that "owners
of slaves, not manumitted as before directed, should be bound to support
and maintain them." Taking up then, these three acts, and carefully examining
them, I confess, that although our legislators have made use of different
modes of expression in their formation, and have, according to the progress
of humanity from time to time, made the terms of manumission more safe
and easy for the master, and beneficial to the slave, as far as respects
this question, I see no difference in the construction to be put on them.
The same end appears always to be in view, viz.: to prevent the public
from being burdened in supporting slaves, whose masters from avarice,
or some other motive, were desirous of throwing upon it. To avoid this
inconvenience, as well as to aid the humane intentions of those who were
willing to liberate any of this unfortunate race, over whom the policy
of our country had given a master's right, appears to have been the principal
objects of the several acts of the Legislatures of this State. And if we
inquire, what were the consequences arising from a compliance or non?compliance
with the different modes prescribed, we shall find them precisely the same
in all of them; the first made a slave a free man; by the latter, he continued
a slave. The consequence of a compliance or non?compliance with the directions
of the laws, being the same in all of them. I repeat my opinion, that the
same construction of them, as it respects this question, is fairly allowable.
And as it has very frequently been decided by this court, that proofs of
partial freedom, abundantly less than that now before us, (although it
did not make a free man, nor release the estate of the master from
the maintenance of the slave) were amply sufficient to discharge the slave
from all claims of the master, or any under him, to the actual service
of him, with whom the contract of partial freedom was made. For the sake
of uniformity in our decisions, as well as in the aid of liberty and humanity,
(which the law always favors), I cannot but believe that the instruments
in question, completely exonerate the blacks, Dick and Phebe, from all
claims of personal service.
PENNINGTON, J. -- These causes have been submitted without argument; and
are of very considerable importance, as affecting future decisions. The
negroes named in the writs of habeas corpus, claim their freedom,
upon two certain deeds, purporting to be the deeds of manumission, bearing
date the 16th day of June, 1803, executed by their master, John
Emmons, in the presence of one witness only. No one of the requisites,
required by the act respecting slaves, being complied with, except. signing
and sealing. By this act, in the first section, it is declared, that every
negro, that at the time of passing the act, was a slave during his or her
life, should continue such, during his or her life, unless manumitted and
set free in the manner prescribed by law. The manner of manumitting,
or setting free of slaves, not being prescribed by the common law, we must
resort to the statute for instruction on this subject. This is found in
the 21st, 22d, and 23d sections of the before recited act. The manner is
there prescribed with great precision. Slaves for this purpose, are placed
in two classes; first, those between 21 and 40 years of age: second, all
other slaves. In the first class, the manumission must be in writing, under
hand and seal, executed in the presence of at least two witnesses, or
by last will and testament. The slave must be sound in mind, and not under
any bodily incapacity of obtaining a support, and not under the age of
21, nor above the age of 40 years. These facts must be certified by the
signature of two justices of the peace of the county, and also by the signature
of two overseers of the poor of the township where the owner resides; and
the certificate must be recorded in the clerk's office of the county. These
requisites being complied with, the act further says, that such slave
deemed and adjudged to be free. The second class, comprehending
all .other slaves, may be manumitted in writing, under the hand and seal
of the owner, in the presence of at least two witnesses, or by last
will and testament. In this case, the owner, his executors or administrators,
or some other sufficient person, with two sureties, being inhabitants and
freeholders of the county, at the Court of Common Pleas, in the county
where the slave resides, the sureties to be approved of by the court, must
enter into bond to the State, in 500 dollars, conditioned to prevent and
keep such slave from becoming a charge to the township or county; in which
case, the act further declares, that the said slave shall be free. But
for the want of entering into the bond required, the manumission, notwithstanding
it contains the other requisites, is declared absolutely void and of no
effect. It doth not appear by the case stated, which class the negroes
seeking their freedom come within; nor is it very material, not having
complied with the requisites of either, except that the instrument of manumission
is in writing, and signed and sealed by the party making it, which is required
in either case. The defects are, that the instrument is not executed in
the presence of two witnesses, but only one; nor was there any certificate
obtained or recorded ; nor bond entered into in compliance with the provisions
in the statute. If this case stood alone, simply on the act of 1798, it
appears to me, impossible to raise a doubt. I take it for granted, that
these negroes were slaves at the time of passing the act respecting slaves
in 1798, otherwise their counsel would not put their freedom on so questionable
a ground; and if they were, the only inquiry under that statute would be,
have they been manumitted in the manner prescribed by law, which I apprehend
to be in the manner prescribed by the act of 1798 ; they certainly have
not, in which case, according to the terms of the act, they must continue
and cannot be deemed and adjudged to be free; but their
manumission is absolutely void sand of no effect.
In opposition to this plain interpretation of the act of 1798, the counsel for the State, set. up a class of adjudicated cases, in this court, commencing in the year 1775, and continuing in all likelihood, till the passing of the act of 1798, which cases seem to be bottomed on a distinction supposed to exist between emancipation, as it respects the owner, and emancipation as it respects the State. That a negro, so far as it respects the master, may be free, but at the same time, quoad the State, he is a. slave; and that so far as the subject respected the master, any kind of manumission, verbal, constructive, or even an intention to manumit, if the slave had been beguiled into a dutiful line of conduct by it, was a valid manumission ; but at the same time, so far as the manumission affected the government, it was void. With great deference to the opinion of those learned and respectable judges, who have countenanced this doctrine, I cannot refrain from observing, that it is a doctrine wholly unintelligible to me. It appears to me, that slavery is an entire thing; that a man is either a slave or he is not. The State, in the cases decided did not pretend to claim the ownership of the negroes; if, therefore, they were free from their masters how could they be slaves? It is a solecism to say, that a man is a slave, and at the same time without a master. If, however, the law stood the same at this time, as it did at the time the decisions spoken of, obtained, I should certainly hesitate before I would consent to overrule opinions and decisions, that have been uniformly practiced on for nearly thirty years in this court; but I take it, that the act of 1798, places the thing on a different ground. I understand that the acts of 1713-14 and 1769, have been considered as enacted by the Legislature, for the purpose, only, of securing the public from the burthen of supporting and maintaining infirm and decrepit slaves; and to prevent the owners from manumitting their old, decrepit and infirm slaves, and thereby throwing the burthen of their support on the State; and hence the distinction respecting a manumission, extending to the master, and the State. That a manumission, in any form or shape that could be possibly conceived of, should, in favor of liberty, be binding on the master, and free the slave from his services, but that, at the same time, he should be considered as a slave, so as to make the master liable for his maintenance and support, in case he should live to be unable by infirmity or old age to support himself:?whether or not this is the true exposition of those acts, I am happy that I am not now called on to determine whether it is or not, it is the ground work of the opinions that have been urged by the counsel for the State. But the act of 1798 goes further than the former acts, on the same subject, and directly embraces another subject?the prevention of fraud and perjury in the act. and proof of manumission, by providing, that if the manumission is not by last will and testament, (the manner of proving which, is already provided for by law,) it shall be under the hand and seal of the owner, in the presence of at least two witnesses. This could not be to secure the public against the maintenance and support of infirm slaves; for that was effectually guarded by the bond with security in one case, and the examination and certificate of the justices and overseers of the poor, in the other.