
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Maverick v. Stokes.
    A paper signed by the owner of a slave granting permission to the latter “ to go about his lawful business,” but providing that it should not operate as a pass if he returned to the State, does not import an absolute manumission ; and upon a violation of the cond'tion annexed, the owner may resume his dominion over the slave. Vide 2 Bay, 511, S. C.
    Motion for a new trial. Action, in nature of an action for ravishment of ward, brought by plaintiff, as guardia) of a mulatto man, named Michael, to establish his freedom; tried be. fore Gkimkb, J. m Charleston district. The title of the defendant did not come in question.- The evidence was, that Mi. chael was known in Baltimore, in Maryland, where he kept an alehouse, and was generally reputed to be a free man. That he was also known in Wilmington, in Delaware, and appeared to be a free man.
    To prove that he had been emancipated, a paper wrbing was produced, the tenor of which was as follows : “ This is to certify, to all whom it may concern, that Michael, a negro, about five feet, eight or nine inches high, and twe.ity-ooe years of age, has my permission to go about his lawful business. But it is to be understood, that this is not to operate as a pass, it ever the said Michael, or Peggy Burton, his wife, should return to the State of Maryland : but that he shall be liable to be taken up, and treated as a slave. Given under my hand, at the city of Baltimore, this 2d of April 1799. (signed) Thos. Rutter, jun.” It was proved, that Michael did return to Maryland, contrary to the condition of the ubovementioued certificate.
    The jury found for the plaintiff, contrary to the direction of th© judge; who charged them, that if they should believe the evidence, which was adduced to prove that Michael had broken the condition of the agreement, which allowed him to go about bis own business where he pleased, tuey should find for the defendant,
    jn support of the motion, it was argued, that the parol evidence adduced at the trial is all explained by the certificate procuced by the plaintiff; and shews in what way, and upon what terms, the man Michael was allowed to be at large as a free man.
    That the question of freedom depends on the sound construction of that certificate, and what was the intent, and leg d operation of it. It does not import a manumission ; but is only a pass. If it should be construed into an instrument of emancipation, yet it is in its nature conditional, and that condition has been broken. On the other side, will be cited, 1 Bac. Abr. Title Condition, Letter D , where it is laid down, that an express manumission cannot be upon condition : but in this case, there was no express manumission. But without laying hold on points that may appear to be merely verbal, the law of England relative to Villeins, cannot apply to decide questions relative to slaves in. this country. The policy of our law, and the necessity which must dictate that policy, requires very different regulations to those which existed in England, in regard to villeins. In favor of liberty, it might have been a principle in England, to construe every instrument indicative of an intention to manumit, into a manumission ; and to reject as repugnant and incompatible, all conditions with which such manumission might be clogged. But with us, a different policy and rule of construction must prevail, or evil consequences will result. In this case, the instrument cannot bo considered in the light of a deed of manumission ; and if it should he so considered, yet as the same has a condition annexed, such condition must be regarded, and held binding: and as that con. dition has been broken, the party who has broken the same, shall derive no benefit from the instrument to which it is annexed.
    
      E Contra.
    
    This was a mixed question of law and fact, and one which the jury were properly authorized to decide either way. The pass produced in evidence, was a recognition of a pre exist, ing right of freedom. A freeman cannot become a slave ; but the maxim here is, once free, and always free. When he received this certificate, Michael was to all intents an 1 purposes free. The person who gave the certificate, hud no right to impose the con. dition, and the condition is void. Co. Litt. 137 b. 5 Rep. 5¿> a. This maxim is founded in wisdom and good policy. Whatever may be the origin, or the right of slavery, it is right that slaves, while they are in that condition, should be under a conviction that they are slaves, and that there is a foundation for the right which their mas. ters exercise over them. This conviction should be inculcated, to insure their docile submission, by which the peace and safety of the country will be preserved. This docile submission cannot be expected, after the slave has once tasted of the delicious draft of liberty , but he must ever after be rendered unfit for the condition of slavery. The maxim of the English law, which favors equal liberty, is not only founded on natural right but on deep policy. Villeb-s were m fact slaves; they were perhaps more rigorously dealt by, than our negroes are. Villeins of one description, were attached to the soil, and were transmissible with the land ; others might be disposed of as horses, or sheep. Any act, indicating a renunciation of dominion and authority, is a sufficient manumis. sion. The condition is merely in terrorem, and not favored in law.
    In reply, it was said that the pass, if it proved a manumission, also proved proprietorship, for one proof could not exist without the other. The negro act of this State, lays the burthen of proof of freedom, on the negro claiming it. P. L. 164. The presump, tion of law is against him ; his color being prima facie evidence of his being a slave. Instruments of manumission must be con. strued by the same rigorous principle. The condition is either void ab initio, or, if not, it must be construed as other conditions that are lawful; and the party entitled to the benefit of the condi. tion may enter for, or take advantage of the breach of it.
    Pringue & Cheves, for defendant. Desaitssuee, for plaintiff.
   The court

(Bat, Johnson, Trezevant, and Brevard, Justices, in the absence of Grimkie, J. and Waties, J.)

were of opinion, that the question was upon the certificate, as the parol evidence could not he taken in contradiction of it: and that this certificate does not import an absolute manumission. That it must be considered rather in the light of a general pass, or licence, to the slave, privileging him to pursue his own business. The condition annexed, shews clearly that the master did not intend to renounce his authority, but to preserve it, in case the slave should fail in conforming to the conditions, he, the master, thought proper to im. pose. He now insists on resuming dominion over his slave, which we think he is legally entitled to do. A new trial must therefore be granted.

¿Die. — in the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, the spoils of an alien enemy which weis lawfully exposed to the firs; hostile occupier, were distinguished by the name of manceps, or manovpmm. taken with rhe hand; and whenever they were sold or e > ancipated, the purchaser required some assurance that they had been the property of an enemy, and not of a fellow citizen. 4 Gibb. Rom. Emp. 322.  