
    Butler and others against Delaplaine.
    In Error.
    
      October*
    
    If an owner M^rWan!" least- a firm thete/with the slaves to cultivate it, the consent of such lessee that one of these slaves should be temoved to Pennsylvania, and his being brought here will not entitle him to freedom to the prejudice of the lessor.
    ERROR to. the Court of Common Pleas of Adams county5ln homine replegiando brought by Henry Butler and 
      Charity his wife, and Harriet Butler and Sophia Btitler, their children, against Jphn Delaplaine.
    
    
      The sojourning of a master, a citizen of another State, with his slave in this State at different time.s, will not entitle such slave to freedom, unless there was at some time a continued retaining of the slave here for six months, unless perhaps in case of a fraudulent removal backwards and forwards.
    Every slave removed into this State from another, without the consent of his master, may be considered as absenting himself, absconding or clandestinely carried away;- under the Act of 1st March, 17B0, and is an escaping under the 2d section of the 4th article of the Constitution of the United States*
    
      
      Charity Butler was admitted to be the slave of Norman Bruce, an inhabitant of the State of Maryland, and still to continue a slave unless she obtained her freedom by, the laws of this State ; and if she were free, her children born-after her emancipation, were likewise free. Norman Bruce, in 1782, was the owner of a tract of land in Maryland, stocked with a number of slaves, and demised it, with the slaves to cultivate it, to one- Cleland, and removed to a place seventy miles distant in the same State. Shortly after the , lease, Cleland entered into a contract with,one Gilleland respecting Charity. Gilleland, for her services, was tp feed and clqthe her until her arrival at sixteen years of age.. Gilleland Was an inhabitant of Maryland. A separation took place between Gilleland and his wife, and Mrs. Gilleland being left; destitute, was obliged to support 'herself and an infant child. She quitted housekeeping, and went to reside with her mother in the house of Mrs. Patterson, who lived in Maryland, near the line between that State and Pennsylvania, taking Charity with her. She was a seamstress and occasionally went into Pennsylvania to work, taking the child and Charity with her to nurse it. She returned at intervals to her mother’s in Maryland, which continued her domicil. ' Whether she ever remained with Charity at any one time for six months, was a fact left to the jury. She returned Charity to Norman Bruce when she arrived at the age of eleven years. Mrs; Gilleland never was an. inhabitant of this State, and never came into it, with an intention of residing.
    The couns'el for the plaintiff, requested the Court to instruct the jury on certain points which, with the instructions of the Court, are stated in the charge of the Court.
    ■ Charge of the Court.—We are requested by the counsel of the plaintiffs to charge the jury, that if they-believe Charity, the mother of' Harriet and Sophia, resided in the State of Pennsylvania, for the- period of six months; m the years 1788 and 1789, with the consent of connivance of Norman Bruce her master, or with the consent or connivance of Mr. Cleland, 
      to whom Norman Bruce leased his negroes, that such residence entitles Charity to her freedom, under the Abolition Act of 1780 j and that Harriet and Sophia, born after such residence of six months, are entitled to their liberty in consequence of the right of their mother. This request contains three distinct points, which we will answer, in their order.
    1. If you believe that Charity resided in Pennsylvania for a period of six months in the years 1788 and 1789, with the consent or connivance of her master Norman Bruce, such residence would entitle Charity to her freedom, under the Abolition Act of 1780, and the supplement of 1788.
    2. .The consent or connivance of Mr. Gleland, if without the knowledge or approbation oí .Norman Bruce, would not entitle Charity to her freedom, under the said Acts ; and merely leasing the farm and negroes to Cleland by Norman Bruce, to cultivate the same, does not raise a legal presumption without other evidence of his consent or connivance.
    3. Harriet and Sophia, being born after such residence, would follow the condition of their mother. If she is free, they are free also. If a slave, by being born in Maryland, they are slaves also.
    We are further requested, on the part oí the plaintiffs, to charge the jury, that a residence of six months in the whole, although compounded of periods shorter than six months each, with an interval of two or three weeks between them, during which Charity was removed into the State of Maryland, is a residence.of six months, so as to entitle Charity, and her issue born afterwards, to their freedom, under the Abolition Act. The plaintiffs’ counsel have rested their case, exclusively on the 10th section of the Act of 1780. Under that Act, there must be a single residence of six months. Different acts of residence, at different periods, Cannot be tacked .together, so as to make a whole ; for each act of residence is' a whole in itself. But on this point, we must go further in favour of the plaintiffs than their counsel, and contrary to their. reasoning, Under the provisions of the 2d section of the Act of 178'8, if Charity was brought by her master, or any one having legal authority from him, or having legal controul over her, with intention of residing or inhabiting in this State, she became immediately free. We add that such authority and controul are not necessarily presumed in Mrs. Gilleland, from her having procured Charity from Cleland, and the lease of the farm and negroes to him Norman Bruce,- to cultivate-it, and-tibor k it, while he the master, removed seventy miles.■ distant. >
    At the request of the defendant’s counsel, we state, that if you believe that neither Cleland nor Mrs. Gilleland were the agents of Norman Bruce, and that the removal of Charity into the State of Pennsylvania was without the consent or approbation of said Bruce, such removal would not entitle the plaintiffs to freedom, under the Act for the abolition of slavery. And if no authority directly or indirectly was given by Bruce to Cleland, or Mrs. Gilleland, to remove said negro to this State, your v.erdict should be for the defendant.
    The whole is before yo,U for your decision.
    The plaintiffs excepted to this charge, and the jury found a verdict for the defendant.
    
      MiConachy and Dobbin, for the plaintiffs in error,
    now argued, that the charge of the Court was erroneous in the following respects. •
    1. In stating that- the consent of Cleland, the lessee of -Norman Bruce, to remove Charity would, not entitle her to her freedom. The Act of March 1st, 1780, sect. 10, Purd. Dig. 479, excepts-from freedom the domestic, slaves of persons sojourning in this State, and not becoming resident therein, provided such domestic slavesare not- retained in this' State longer than six months. The 2d sect, of the Act of 29th March, 1788, Purd. Dig. 480, declares, that this exception shall not extend to persons inhabiting or residing here, or coming here with an -intention to settle and reside. The 11th sect; of the Act of March 1st, 1780, Purd: Dig. 480, contains a proviso as to absconding slaves, declaring the Act not to embrace them. ■ The only slaves, exempted, are absconding and runaway slaves: no others are exempted. Cleland was the lessee of the slave, and must be considered us the qualified owner. If the. removal were for six months by his permission, it is embraced within the words and meaning of the, Act: otherwise its salutary provisions might be evaded by the introduction of slaves- into this State by lessees for a long term of years, and holding them as such in contravention of the object of the laws. The violation of the contract between Bruce and Cleland, by which the latter was to keeP ^e slaves to cultivate the farm, might render Cleland responsible toBruce, but cannot affect the quality q£ any ¿ong by Cleland, the consequence of which, our laws have declared shall be the freedom of the slave.
    2. The second error was in the Court’s stating that the sojourning of a master, a citizen of another State, with his slave in this State, would not entitle the latter to freedom, unless there was one continued retention of him here for six mpnths. This also would render the law easily liable to ''evasion. A slave might be brought in and kept here during life, if the owner took care to remove him occasionally for a day or two, so as to break the continuity of the sojournment.
    3. The third error was in the Court’s casting on the plaintiffs the burthen of proof, that the removal and continuance of Charity was with the assent of Norman Bruce, or by his connivance. The proviso in the law being, in favour of the master, it lies upon him to prove that the slave had absconded or runaway. (
    4. The fourth exception is, that the Court did not direct the jury that the lease by Bruce was prima facie evidence of his licence to take her out of the State.
    
      Stevens, contra.
    The lease to Cleland was for a special purpose, namely, to cultivate the land leased to him. Cleland had no right to carry any of the slaves out of the State of Maryland, or to authorise any other to do so, nor can it in any way be implied that he could have power to destroy the property of the lessor by removal into another State where the laws divested such property. . As to continued residence for six months, it is clear that a slave who happens to come with his master on different visits, which may on adding up the time of their duration exceed six months, cannot be contemplated by the law. If there were any attempt made to defraud its provisions in the mode suggested, it might form a case for the Court to decide that the slave was free. But there is no such evidence or allegation in the present instance.
   The opinion of the Court was delivered by

Duncan J.

in giving a construction to this lease, we must take into view, the subject matter of the contract, species of property to which it related, and the place in which the right of Cleland over the property, was to be exercised. If this were a general hiring of ei slave in Maryto an inhabitant of Maryland, it would be difficult to maintain the right of the lessee or bailee to do an act which would extinguish the property itself. There would necessarily be implied an engagement-on his part to restore the slaves. The contrary implication. would be highly unreasonable. That he had authority to do an act which'¡would put it out of his power to restore them', Would be an instance of folly that cannot be imputed to any one capable of entering into a binding contract..-( But this was not a general hiring, but a special one. The negroes were demised with the land, for the purpose of cultivating the farm. Though this is a claim of freedom, we are-not in ^ favour of,'liberty to lose sight that this class of people are acknowledged as slaves by the laws of both States. The master has a property in them, and contracts respecting this species of property, are to be construed by the same rules of interpretation, that contracts respecting any other species of property areJ We are not at liberty to infer a power of removal, when the contract-itself takes away all implication, and states the very purpose for which they were hired, to cultivate this farm of Norman Bruce, devised by him to Cleland. It follows, that the de-; cisión of the Court was' correct in stating that the consent of Cleland to remove Charity-into this State,'would not entitle her to her freedom. The continuing of a sojourner, must be a single, unbroken one, for six months. There may be cases of a fraudulent shuffling backwards and forwards into Pennsylvania,, and then into' Maryland, and then back to Pennsylvania. This might be in fraud of the law, and would present a different question ; but here there is no evasion—no ground even for suspicion of evasion.

It was well known to the framers of our Acts for the Abolition of slavery, that southern-gentlemen with their families, were in the habit of visiting this State, attended with their domestic slaves, either for pleasure,'health, or business; year after year passing the summer months with us, their continuance scarely ever amounting to six months. If these successive sojournings were to be summed up, it would amount to a prohibition—a denial of the rights of hospitality. The Tork and Bedford springs are watering places frequented principally, and in great numbers, by families from Maryland and Virginia, attended by their domestic slaves. The same families with the same servants return in each season. The construction contended for by the plaintiffs in error, would be an exclusion of the citizens of our sister States from these fountains of health, unwarranted by any principle of humanity or policy, or the spirit and letter of the law. The retaining a slave for six months by a sojourner, may well be compared to the hiring and service for one year, to obtain a settlement under the poor laws, which must be an entire hiring, and an entire service for the year; or to the period prescribed as a limit to the recovery of real estate where the adverse possession must be continuous, unbroken and unirtterrupted. It must be one hiring, and one entire' service under the poor laws. It must be continued possession for one interrupted period of twenty-one years under the Limitation Act. And under this’law, the retaining must be for one unbroken point of time—one entire six months, and cannot be made up of different points of time joined together.

I cannot agree with the counsel of the plaintiffs in error, that the Court did throw the onus of proof of the master’s consent, on the slave. All they said, was, if it appeared to the jury from the evidence, that Charity was not brought into Pennsylvania with the knowledge or connivance of Norman Bruce, and no authority was given directly or indirectly by Bruce to Cleland or Gilleland, to bring her into Pennsylvania, she continued his sla've. The fourth point is nearly the same as the second, for the reasons already stated, that the master’s lease to Cleland, was no evidence of his leave to Cleland to bring her into Pennsylvania. It is so far from affording such prima facie evidence, of an intention to grant a licence to remove the negroes into Pennsylvania, that as clearly as language can exclude such construction, it isjjhere done. It would not be a power necessarily incident to the use of the thing demised, because the slaves are to be used in the cultivation of the farm in Maryland. A presumption could not be raised of such intention, because it is against all reason and all probability. It is contended, that every slave brought into this State, and remaining here for six months, unless he is an absconding or runaway slave, became ipso facto free, and that whether the party removing him had authority or not, to bring him in. This construction would be a reproach to the framers of the Acts for the abolition of slavery, as it would be an outrage on the property of the citizens of another State, where slavery is tolerated—a confiscation and forfeiture of their rights, without any act done by them in violation of the laws of this State. It would be an invitation and reward offered to strangers who .had no right or authority, to bring slaves into our State—to overseers, to bring over the gangs of negroes entrusted to their superintendance. Nay, on this principle, if the negro were stolen from Maryland and' brought into this State, he would become free. The Legislature wisely and humanely desirous to abolish gradually slavery in this State, have cautiously preserved the rights of citizens of other States whose slaves are introduced into this State without theijr knowledge.

The 10th section of the Act of 1st March, 1780, provides, that no man or woman, of any nation or colour,, except the negroes and mulattoes, 'who shall be registered, shall be holden within the territories of this Commonwealth as slaves or servants for life, except domestic slaves of delegates to Congress from other States, foreign ministers, &c., and persons passing through and sojourning in this'State. ■

The 11th section provides, that the Act shall not give relief or shelter to any absconding or. runaway negro or mulatto slave or servant for life, who has or shall absent himself from his or her owner or master ; but he shall have right and aid to demand, claim, and take away his servant or slave, as he might have had in case this Act had not been made, and that all.negro and mulatto slaves now owned . and heretofore resident in this State, who have absented themselves or been clandestinely carried away, before the passing of this Act ,may be.registered within five years. Absenting themselves, absconding, being clandestinely carried away, in all these cases, I am of opinion, that the interest of the master is secured*; the slave who is removed into this State, without the consent or connivance of the master, may be considered as a slave- absenting himself, absconding, or clandestinely carried away; ' and that such removal under the 4th article, section 2d of Constitution of the United States, would be an escaping into another State ; and that under that article, the slave coming ^nt0 the State, in any other way than by the consent of the owner, whether he comes in as a fugitive or runaway, or is brought in by those who have no authority so to do, cannot be discharged under any law of this State, but must be delivered up on claim of the party to whom his services or labour may be due.

The opinion of the Court was, in all matters on which they were requested to charge the jury, entirely ■ correct; and it wais left to the jury with the opinion of the Court on the general question of law, with all accuracy, that if they believed that neither Cleland nor Mrs. Gilleland were the agents of Norman Bruce, and that if the removal óf .Charity into the State of. Pennsylvania was without the consent or approbation of Bruce the master, such removal did not entitle the plaintiffs to freedom ; and that if no authority directly or indirectly - was given by Bruce to Cleland or Gilleland to remove Charity, that the verdict should be for the defendant. The judgment is therefore affirmed.

Judgment affirmed.  