
    Samuel Maverick against Thomas Stokes.
    
      Charleston,
    
    1803.
    Where a negro claims his freedom from, a person residing in a sister state, a paper purporting to be apass only, will not amount to a manumission, although it appear thatsuch negro may-have beenper-mittedlo have worked out, for his own e. molument, in such neigh-bouring states
    SPECIAL action on the case, in nature of a writ of ravishment of ward, to try the freedom of a negro man, named Michael.
    In support of this action, several witnesses were called by the plaintiff, who deposed, that they had known the negro in question at Baltimore, where he had kept a cake and ale house; and also in Wilmington, in the state of 'Delaware, where he pursued some other business; and that in both places he appeared to be independent of any master, and conducted himself like a free man.
    In further support of the plaintiff’s case, the following written certificate or paper was produced, (to wit.)
    “ This is to certify to all whom it may concern, that Michael, a negro about S feet 9 inches high, 21 years of age in August last, has my permission to go about his lawful business ; but it is understood that this is not to operate as a pass, if 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 se« cond day of April, 1799.
    (Signed,)
    
      u Thomas Rutter P
    
    On the part of the defendant it was proved, that the said negro Michael did, in violation of the condition in said certificate, return to the state of Maryland. And it was mutually agreed upon by the parties to this suit, that the sole question in this case should be, whether the ward of the plaintiff was free or not ? and that no question should be made as to defendant’s title, or how he came by him.
    
      Dessaussure, on the part of the plaintiff,
    contended, that his keeping a house, and dealing for himself in the place where his supposed former master resided, and his removal afterwards to the state of Delaware, and carrying on business there for himself, as if he had been a free man, were of themselves presumptive evidence that he must have been manumitted and set at liberty. And the paper produced, it was contended, operated as such to all intents and purposes; for it permitted him to go about his lawful business. This lawful business, it was urged, gave him his permission to go where he pleased, and to pursue what calling or profession he pleased, for a livelihood ; and that too without limitation of time, or any accountability to his former owner whatever, which amounted to as complete a manumission as well could be framed; and the very condition annexed to this manumission proved it. For it says, if ever he should return to the state of Maryland, or his wife Peggy Burton, then he should be liable to be taken up, and treated as a slave. These latter words prove most clearly, that it was the intention of his master never to consider him as a slave again, provided he did not return to the state of Maryland. Now admitting this to be the fair construction of this instrument of writing, that he was manumitted and set at liberty by it, was there any law, it was asked, either common or statutory, either in Maryland, or any other of the states, which entailed the condition of slavery on any man for entering into the limits of that state, who was once set at liberty ? it was assumed as a position, there was none ; and if none such was produced, then the negro in question was cleárly entitled to his freedom. The mere condition annexed by the former master, was an arbitrary, as well as a nugatory, act; it was ipso facto void in itself; for by the law of England,, which was a part of the common law of this country, a deed of emancipation could not be conditional, between a lord and his villein. Any condition in such a deed, restrictive of liberty on certain conditions, vras void and of no effect.
    
      Mr. Cheves, for defendant,
    argued, that notwithstanding all that had been urged by the plaintiff’s counsel in this case, there was no proof that ever this negro had been manumitted or set at liberty; for although several witnesses had seen him apparently working for himself, and carrying on business as if he had been free, yet it was no proof of freedom, as it was not an uncommon thing for indulgent masters to give their slaves this privilege in the northern states. And as to the paper writing which, had been produced, it could fairly be considered as amounting only to a pass from his master or owner, during his pleasure, which the master had a right, at any time, to countermand, when he pleased. He next contended that a master has such an absolute command or right over his slave, that he might make or impose what conditions he pleased upon him, and there was no law to restrain him from doing so; that the paper writing produced, was one of this kind; it gave the negro permission io pass about his business, that is, to work for himself, unti he thought proper to withhold this permission. Was there any thing in this pass which restrained him from the exercise of that power when he pleased ? None. Then as to the retux-n of the negro j he was in that event to be con - sidered and treated as a slave. Was there any thing in this instrument which prevented him from doing so before, if he thought proper ? None. In fact it was only expressive of the master’s will and pleasure, to treat him like a slave upon his return; but as long as he kept away, he would not exercise that power. He did however return, and thereby forfeited every kind of pledge which the mas» ter might have given him not to treat him as a slave j so that if any kind of conditional contract could be considered as ever having been made between them, it was broken on his part, and he could no longer claim the benefit of it.
    The presiding Judge, (Grimxe,) in charging the jury told them, that if this paper produced could be con. sidered as a contract between the master and his servant, the condition had been broken by the plaintiff’s ward, the servant, and consequently that such contract was dissolved. It therefore followed naturally from the premises, that the plaintiff’s ward had failed in proving himself to be a free man, and by the act of assembly of our state, the burthen of the proof is thrown upon the shoulders of the party claiming his emancipation. But the jury, contrary to the opinion of the Judge, found for the plaintiff.
    This was then a motion for a new trial on the grounds,
    1st. That the paper produced in evidence as proof of a manumissiqn of the ward of the plaintiff, was only a pass from a master to his slave.
    2dly. That if the same could be considered as importing a manumission, the condition on which it had been granted had been violated, and therefore it was void.
    This case was again very fully argued on this motion for the new trial, and'the same grounds nearly which had been taken on the trial of the issue were again urged on this argumento
   The Judges,

after fully considering the case, were of opinion, that the writing given in evidence on the trial, and which it was contended amounted to a manumission, was nothing inore than a pass or protection against others who might claim the slave, and did not amount to a dereliction of such slave, or a renunciation of the master’s right to him.

The temporary indulgence of the master, that his slave should or might work for his own emolument, could not be construed to amount to an emancipation, but only a temporary suspension of his claim to his services.

A new trial was therefore ordered, as the verdict was against law, and the charge of the presiding Judge.

Present, Bay, Johnson, Tresevant, and Brevarb,.  