
    *NOVEMBER TERM, 1821.
    JUDGES PRESENT.
    
      White, Brockenbrough,
    
    
      Smith, Allen,
    
    
      Daniel, Semple,
    
    
      Saunders, R. E. Parker,
    
    
      Bouldin.
    
    The Commonwealth v. John Tyree.
    Criminal Law-Negro Sent to Superior Court as Free Person — Who May Object.—If a black man be sent on for trial by the Examining Court to the Superior Court, (charged with a crime, which in a slave is punishable with death, and in a free man by Penitentiary confinement.) as a free man, unless the accused shall himself plead in abatement to the jurisdiction of the Court, that he is a slave, the Superior Court will proceed to try him as a free man: such plea is the only mode by which the question can be put in issue in the Superior Court.
    Same — Same—Same.—The Court will not allow, in such case, any other person who claims him as his slave, to make up a collateral issue, or to give evidence on a collateral motion, which has for its object the decision of the question whether or not the accused be a slave; the accused not being a party to such proceeding, ought not to be affected by it.
    Same — Capital Case — When Collateral Issue Allowed.— In a capital case, a collateral issue to which the accused is not a party, may be made up, when it operates in favorem vitie, as whether the accused be non compos, mute by the visitation of God, &c. but not where it is against life.
    Quaere. Can a claim of cognizance be allowed in any case in this country?
    This was an adjourned Case from the Superior Court of Law for Caroline county. The prisoner, who was a black man, was indicted for a rape on the body of one Betsy E. Gray, in the said Superior Court, at its October Term. Having been led to the bar, he pleaded not guilty ; the arraignment and plea were entered the first day of the Court, and the Case was continued till the next day.
    On the next morning-, one William Tompkins, a resident of Spottsylvania county, came into Court, and exhibited a petition, stating that on the 17th November, 1810, he owned a slave named Armistead, then about 18 years *of age; that t-he said slave on that day absconded from him, and that he made various efforts to recover him, which were ineffectual, being unable to-hear any thing of him ; that on Sunday last he found the said slave in the j ail of Caroline, charged with a felony, under the name of John Tyree : that he has never manumitted the said slave, nor parted with his interest in him : that the jailor refuses to deliver to him his said slave, and he believes he is unlawfully detained ; he therefore prayed that the Writ of Habeas Corpus might be issued to bring up the body of the said slave before the Court, that the legality of his detention might be enquired into. The petition was sworn to by the petitioner, and was also supported by the affidavit of Wilson Swann. The Writ of Habeas Corpus was accordingly issued, and the man brought before the Court. The Jailor made a return to the said Writ, as follows : “By virtue of this Writ to me directed, I have here the body of John Tyree, who is detained by me for the following causes : the said prisoner, as a free man of colour, was, on the 13th August, 1821, brought before an Examining Court for the county of Caroline, charged with a Rape on the body of one Betsy E. Gray, and it was thereupon considered by the said Court, that the said John Tyree ought to undergo a trial for the said offence before the next Superior Court for the county of Caroline, and thereupon he was by the said Court of Examination remanded to jail: the said prisoner was, on Monday last, indicted before the said Superior Court, as a free man of colour, for the offence aforesaid, and being thereof arraigned, pleaded not guilty to the Indictment, and his trial was postponed by the said Court till the then to-morrow, and he was thereupon by the said Court remanded to the jail of which I am keeper ; all of which will appear by the records of the said Courts, which are prayed to be taken as a part of this return, and I detain him for no other cause.
    T. B. C. Jailor.”
    The return being read, Tompkins traversed the return as follows : “ And the said William Tompkins, here in Court denies that the said John Tyree is a free man of colour, and avers that he is the slave of him the said William Tompkins, whose real name is Armis-tead, and prays that the same may be enquired of by the Court, and that the Court may not take jurisdiction of the said offence wherewith the said prisoner is charged, and that the Indictment against him may be quashed.”
    «The evidence of sundry witnesses was then taken in Court; by which it was proved, that the said William Tompkins had lost his slave by the name of Armistead, then a youth about 18 years of age, about the year 1810 ; that he had never been regained since his elopement; that the prisoner at the har, now called John Tyree, is the identical negro, by the name of Armistead, who had so eloped ; that the prisoner had passed himself as the son of one Aggy Tyree, a free woman, in that county ; that he had recently denied that he was her son ; that, in point of fact, he was not of that family ; that he was not registered as a free man ; and that the register, or its contents, were not communicated to the Examining Court, when he was before that Court.
    The record of the Examining Court accompanied the return of the Jailor, by which it appeared that he was examined as a free man of colour, by the name of John Tyree, and remanded for trial as a free man.
    The Court being of opinion, that the matters of Eaw arising upon the said traverse to the return to the Habeas Corpus, are new and difficult, adjourned the same to the General Court for their opinion and judgment on the following questions : 1. Can any evidence be now received in this Court in support of the petitioner’s traverse, for the purpose of proving that the prisoner is not a free man of colour, but the slave of th e ‘petitioner ? 2. Is the record of the Examining Court, remanding the said prisoner for trial here, as a free man of colour, to be taken as conclusive proof against the petitioner, William Tompkins, quoad the trial of the prisoner, that the said prisoner is free, (the said prisoner having when first arraigned on Monday last, refused to plead in abatement that he was not a free man, but a slave) ? 3. If evidence be admissible in support of the petitioner’s traverse, by whom shall the issue, whether the prisoner be a slave, or a free man, be tried ? By the Court, or by a jury to be impanelled for the purpose ? 4. If the Court be satisfied from the evidence, or if a jury impanelled to try the issue, find a verdict that the prisoner is a slave, is the Court bound to refuse to take jurisdiction of the offence with which he is charged, and bound to quash the Indictment, as prayed by the petitioner ? 5. All questions which may arise in this Case from the Writ of Habeas Corpus, the return thereto, the traverse thereof, the evidence taken in this Court, and the proceedings in the Examining Court, and this Court, against the prisoner ?
    *The trial of the prisoner was then deferred till the next Term.
    After due consultation by the Judges of the General Court, the following opinion and judgment were delivered, Judge Daniel dissenting.
    
      
      Criminal Law — Negro Sent to Superior Court as Free Person — Who May Object. — A court having j urisflic-tion of a case and having tried a negro as a free man and sentenced him to imprisonment, the general court cannot, on the application of persons claiming the negro as a slave discharge him from imprisonment, by habeas corpus. Ex parte Ball and Saterwhite, 2 Gratt. 590, 591. citing the principal case.
    
   BKOCKENBROUGH, J.,

delivered the opinion of the Court:

The Examining Court of Caroline county remanded tó the Superior Court of that county for trial, for a crime of great malignity, a free man of colour by the name of John Tyree. He was indicted there for a crime, and being arraigned, he pleaded “not guilty” to the Indictment, and was remanded to jail. On the following day a citizen of another county, Mr. William Tompkins, petitioned the Court for a Writ of Habeas Corpus to bring before the Court a slave of his, by the name of Ar-mistead, who was then detained in jail, charged with a crime, stating that he could not be legally tried for the same in that Court. The Writ was issued, and the Jailor made return, that the said person was committed to his custody as a free man of colour, by the name of John Tyree, and made the record of the Examining Court a part of his return. The petitioner informally traversed so much of the return as stated that he was a free man of colour, and prayed the Court to enquire into the fact of his being his slave, and to quash the Indictment. The evidence of witnesses was then heard, tending to support the allegation of the petitioner, and the questions arising in this Case were adjourned to this Court.

A slave cannot be properly tried before a Superior Court of Law : he is to be tried by the Justices of the County Court, who, for that purpose, constituted a Court of Oyer and Terminer. When a black man is brought before an Examining Court, it is the duty of that Court to enquire whether he be a free man, or a slave ; if he be a slave, they cannot send him on for trial to the Superior Court. If they send him on trial as a free man, and he be indicted as such, 'there seems to be only one mode by which the fact, whether he be a slave or not, can be regularly tried in the Superior Court. It is matter of abatement, and the person arraigned may plead it, and object to the jurisdiction of the Court. On such plea to the jurisdiction, if an issue be taken, a jury may enquire into and find a verdict on the fact; '-and if they find him to be a slave, the Court will proceed no further with the case, but send him to the proper Tribunal. If he does not object to the jurisdiction on that ground, can any other person be allowed to interplead, rif we may use such expression,) and prove to the Court that it has no jurisdiction ? It may be said, that every black man is prima facie a slave, and that as it so appears to the Superior Court, that Court ought first to enquire into the fact, before it will take cognizance of it; that presumption is, however, repelled by the judgment of the Examining Court, which declares him to be a free man, and that judgment must be considered as binding, until the contrary appears in some legal mode. If a third person can claim him as his slave, by what method of trial can it be ascertained ? Can the Court be called on to hear evidence, and decide on the fact ? This- is not the duty of the Court: its duty is to decide on the Law, not on facts. Can a jury be impanelled to try the fact ? If so, who are parties to the issue, if there be one ? The alleged master, and the jailor. Whilst this- issue is then trying, the accused person stands before the Court in vinculis, is no party to the enquiry, and yet is bound by the verdict which may be found against him ! The Court has not seen any Law by which such an anomalous proceeding can be justified. - It is true, there are cases in which a similar proceeding is allowed, but under different circumstances. When an accused person is brought before a Court, and there is reason to believe that he is a lunatic, or an idiot; or if the accused stand mute, and will not answer to the Indictment, the Court may impanel a jury to decide whether he be non compos mentis, or whether he be mute from obstinacy, or from the visitation of God ; and if they find for the accused, the trial will be suspended. There is, however, this great difference between the cases. Those proceedings are allowed in favorem vital ; but if it could be allowed in this case, it would be against life. The consequence of sustaining the objection to the jurisdiction here, would be, that instead of punishing him in the Penitentiary, he might be condemned to lose his life. The Court cannot, therefore, convert a principle dictated by humanity into an instrument of cruelty.

We enquired into the ancient doctrine of the claim of cognizance by the Courts of the two Universities in .England, and by other Courts having certain exclusive jurisdiction *in cases of felony. 4 Black. Com. 276-9. But we are of opinion, that that doctrine, besides being obsolete, will not apply to this case, for several reasons. The Justices of the County Court constituted the only Tribunal who could claim the cognizance in this case: but those Justices have already disclaimed it, by adjudging him to be a free man. That claim, when allowed in England, does not draw along with it any higher punishment; in this case it does, and therefore ought not to be allowed.

For these reasons, the following is to be entered as the judgment of this Court :

“It is the opinion of this Court, and it doth decide, that as the prisoner, John Tyree, did not plead in abatement to the jurisdiction of the said Superior Court of Law, no evidence whatever was admissible in support of the said William Tompkins’s application, for the purpose of proving that the said prisoner is not a free man, but the slave of the said petitioner ; and that the record of the Examining Court, remanding the said prisoner for trial as a free man of colour, (there being no such plea in abatement, as aforesaid,) is to be taken as conclusive proof, quoad the trial of the prisoner in the Superior Court, that he is free. The other questions need not be answered ; all of which is ordered to be certified.”  