
    GENERAL COURT,
    OCTOBER TERM, 1796.
    Richard Higgins against Nathaniel Allen.
    THIS was an appeal from Anne Arundel county court, from a judgment rendered for freedom, at September term, 1794. The record states that Allen claimed his freedom as being descended from a free woman, and the. case appeared to. be as follows:
    
      Hannah Allen was a white Scotch woman, great-grandmother of Nathaniel Allen, the petitioner, and she had, by a negro, a daughter named Hannah Allen, the grandmother of the petitioner.
    The last-mentioned Hannali had, by a negro, a daughter named Jane Allen, the mother of the petitioner.
    
      Jane had the petitioner by a negro, and she was adjudged, as it is said by Prince George’s county court, at August term, 1772, to serve seven years for having the petitioner, and the petitioner, being then five months old, waá sold till he arrive to the age of thirty-one years, unto Richard Higgins. The record of conviction for having a mulatto bastard is stated in the record, &c. and is recorded in Liber C. C. No. 1. folio 186. one of the judgment records of Prince George’s county court.
    The petition for freedom was filed 22d January, 1794, in the county court of Anne Arundel.
    
    
      Jenings, for the petitioner.
    
      Question. Had the county court of Prince George’s a right to sell the petitioner, as being the issue of a mulatto woman and negro ?
    By the act of 1715, c. 44. sect. 26, 27. the issue or children of white women by negroes are to be servants until they arrive to thirty-one years of age, the mother to be a servant for seven years, to be adjudged by the court.
    By the act of 1728, c.N4. such free mulatto women having children by negroes and their issue, to be subject to the same penalties that white women and their issue are.
    In the preamble it is said that such copulation is as unnatural and inordinate as between white women and negro men.
    
      Ib. sect. 3. Free negro women, having bastards by white men, and their issue, to be subject to the same penalties that white women are for having children by negroes.
    As to the propriety of admitting free mulattoes as evidence:
    By the act of 1717, c. 13. no negro, mulatto slave, free negro or mulatto, born of a white woman during the time of servitude by law, to be admitted evidence where a white person is concerned.
    As to the point of slavery. To malte a person be in a state of servitude, there must be an express lawj for liberty is not to be taken away b}r mere construction.
    If there is no positive law for making all the descendants of white women by negroes, slaves, they are, consequently, free.
    The acts making the children of white women, and of mulatto women, born of white women, slaves till thirty-one, is in the highest degree penal, and requires, there’ fore, the strictest construction.
    The first act is that of 1715, c. 44. sec. 26, 27. This act only extends to-, white women having children, and, consequently, does not include the case.
    It is evident the petitioner is the descendant of a white woman, by his being setup as a servant for thirty-one years: if he had been the descendant of a free negro woman, he must have been free j and if of a negro female slave, he must have been a slave.
    The act of 1728, c. 4. subjects certain free mulatto .women, having children by m groes, to the same penalties as white women under the act of 1715, c. 44.
    
    
      It does not specify the punishment in any other manner than by reference to the former acts, consequently, must be entirely guided by it.
    The act of 1728 shows that neither the court, nor the legislature, would extend the act of 1715 beyond the express letter of it; that act mentioning white women only, would not be extended to take in the mulatto daughter of such white woman, therefore, another law was made' to include the case.
    This law of 1728 was only made to put free mulatto women, though daughters of white women by negroes» having negro children, in the same situation as to them and their children, as white women and their children by negroes were under the former law of 1715.
    What was the purport of the former law ? To make the mother and the children serve the time limited; it did. not extend to make all the descendants liable to servitude or slavery for thirty-one years.
    The act of 1728 is to have the same effect as to these free mulattoes, to make them and their children serve, but not to be applied to the descendants.
    The petitioner is in the fourth descent from a white woman.
    The act of 1728 considers (in the preamble) the connection of free mulatto women and negroes, as equally unnatural, and inordinate as between white women and negroes. This must be on the principle of their being one degree removed from a white woman.
    But with what propriety can this principle apply to future descents by a negro father; when the complexion will hardly afford any (if at all) discrimination between a negro and these descendants; and every person would think it more unnatural for such women to have a connection with a white than a black man.
    The act of 1728 only speaks of mulatto women having children; a mulatto is begot between a black and a white,■ 
      (Vide Johnson’s Dictionary.') The petitioner’s mother was the daughter of a mulatto, but was not a mulatto, according to any known definition of the term ; mulatto is derived from the Spanish, and they distinguish after descendant3, according to their degree of proximity, by Tercerons, Spitarterons, See.
    Are there not many persons now who have a mixture of this blood in them, and if all are mulattoes what is the consequence r
    The petitioner not being the son of a mulatto, is not within the law. He cannot be said to be the son of a mulatto, unless all the descendants of a white woman are included under that term, though there is only issue, always after, by negroes.
    If all these descendants are free mulattoes, they become slaves for life if they marry with whites 5 if with negro slaves, for seven years, and their issue till thirty-one. 1717, c. 13. s. 4.
    If it is objected that all descendants of a mulatto women are within the law, and that the word issue should have this construction, it may be observed:
    That the act of 1715 can only mean the immediate children, and the act of 1728 is to have the same construction.
    If the act of 1715 included all the descendants of a white woman having children by negroes, then the act of 1728 was nugatory and of no effect whatever.
    The child of a white woman by a negro is a mulatto, and if the act of 1715 makes the issue of such children slaves for thirty-one years ad infinitum, and considers them as free mulattoes ,* it follows, that if such mulatto child had a child by a negro, and her daughter another, &c. they were all to serve.
    The act of 1728 was made on different principles, and it is evident it was then thought that the immediate child born was only to serve, but none of her descendants 5 otherwise the act needed n< t to have been made at all, as the descendants must have served without it.
    The law of 1/28 must receive the same construction as that of 1/15, (referring to it,) and, consequently, only the immediate children of free mulattoes, born of a white woman, are to serve, but none of the descendants ; otherwise the two laws must receive different constructions on similar subjects, though the former is referred to as directing what punishment is to be under the latter.
    This law of 1/28 speaks of a mulatto child of a white woman, having connection with a negro, to be equally Unnatural as between white women and slaves, a position somewhat extraordinary ? But if only equally so, they and their children should not be subjected to greater punishment.
    In the eye of reason, the crime of the white woman is greater than that of her mulatto child, and if any difference of punishment, the white woman should undergo the greatest, hut none of her descendants but the immediate issue are to serve ; why then ought the descendants of the mulatto he in a worse situation ¡
    
    The descendants of white women born after the act of 1/28 would he slaves.
    It is alleged that the petitioner is held because his mother, being a free mulatto, had this child by a negro. The word issue extends ad infinitum.
    
    It is answered ; on this principle, the descendants of a white woman having a child by a negro, would be obliged to serve, and their children under the law of 1/15.
    For example, suppose under this law a white woman had a mulatto child, and that child had issue by a negro j it is clear that neither the granddaughter of the white woman, nor her issue, were punishable under this law of 1/15, on account of the granddaughter’s having such child; for it confines the punishment to the wh’te woman and her children or issue, because the white woman had such issue; but it does not extend to the daughter having issue by a negro ; if it did, the law of 1728 was needless.
    How is a person a free mulatto, who is to serve till thirty-one years ?
    By the act of 1728 the mulatto issue of a white woman having a child by a negro, is considered in the same situation as a white woman ; therefore, she must serve seven years, and the child thirty-one; why? because a white woman and her child under the same circumstances must serve for that time. But if the daughter of the mulatto has a child by a negro, she is not to serve, neither is the child; why? because the act of 1715 extends not to the mulatto issue of a white woman having a child by a negro, and the mulatto daughter of a white woman, having a negro and her children are, by the act of 1728, only subject to the same punishment as white women and their children under the law of 1715,
    It is alleged that the descendants are mulattoes, therefore within the act.
    This position is denied, as only the issue between whites and blacks are mulattoes; but admit they are so, it cannot be denied but the immediate issue are descendants ; then, if the word will admit of two constructions, in what sense did the legislature use it ? And this is apparent from the preamble, that they only mean such mulattoes as were the children of white women by negroes, and not remote descendants. By this construction the descendants of white women by negroes, born after 1728, would be slaves though their ancestors were not.
    1728, c. 4. sect. 2. says tither within, or after their time.of service. There was no service imposed by the act of 1715, but on the mulatto issue of white women.
    A devise to children and grandchildren extends only to those in esse at the time of making the will. Pr. in Ch. 470.
    
      A devise to a man’s children prima facie, refers only to children living at the time of his death. 1 P. Wms. 342. and vide 246. 487.
    
      Shaajf, for appellant, (Allend)
    
    Key, for appellee, (Higgins dj
    
   The general court reversed the judgment of the count}’’ court, and remanded the petitioner to servitude, &c. The petitioner appealed to the court of appeals, and the case was there affirmed in June, 1798.  