11 Ky. 326 | Ky. Ct. App. | 1822
Lead Opinion
Opinion of the Court.
This was an action of trespass, assault and battery, and false imprisonment, brought by Amy, a woman of colour, against William Smith. The defendant pleaded that the plaintiff was his slave, and concluded with a verification. To this plea the plaintiff made no replication; and when, at a subsequent term, the cause was called for trial, she, by her counsel, objected to the sufficiency of the plea, and moved the court to require of the defendant the plea of not guilty; but the court overruled the motion. A jury was then sworn to try the issue; and on the trial, the plaintiff proved by a witness, that in the year Cornwallis surrendered, he went to Pennsylvania, and resided in the house of John and Michael Gingery, for eighteen months; that during that time the plaintiff lived in the same family, and waited upon Mrs. Gingery, the mother of John and Michael, her husband being then dead ; that the plaintiff was from fourteen to seventeen years of age ; that he heard the Gingerys, in repeated
conversations, say she was to be free at a particular age, not exceeding thirty or thirty-five; but that he did not recollect the precise age; that the Gingerys, in 1783, moved to Maryland, taking the plaintiff with them; that old Mrs. Gingery died that year, after their removal to Maryland, and that shortly afterwards he left Maryland, and never again saw the plaintiff, until, a short time before bringing this suit, she presented herself before his door in Fayette county, Kentucky, when he immediately recognized her. The plaintiff also proved by sundry witnesses, that between 1780 and 1790, they knew her in Virginia, where the Gingerys had removed, and that for several years she acted and passed as a free person, without any one exercising any ownership over her. The plaintiff then read in evidence the will of Christian Gingery, the father of John and Michael, in which, among other devises to his wife, he directs "that she is to have the mulatto girl during her natural life, or until the girl comes to the age of thirty one years;” and he makes his sons, John and Michael, his residuary devisees of all his real and personal estate. The plaintiff also read the abolition act of Pennsylvania.
On the part of the defendant, it was proved, that the plaintiff’s mother was of unmixed African blood, and
To the deposition of David Shipman, which was read on the part of the defendant, the plaintiff objected, for the want of notice. The defendant then exhibited a notice to take the deposition between the hours of 11 in the morning and 8 in the evening, at Mr. Chinn’s office in Lexington, and proved the service of the notice about 8 or 9 o’clock of the morning of the same day, upon Mr. Blair and Mr. Hickey, attorneys for the plaintiff, practising in, and attending the circuit court, then in session; but the court overruled the objection, and permitted the deposition to be read.
When the evidence was closed, the counsel for the defendant claimed the right of opening and concluding the argument before the jury, and the court permitted them to do so, notwithstanding it was objected to by the plaintiff’s counsel. After the argument before the jury, the court, at the instance of the defendant’s counsel, instructed the jury—1st, That if the jury found, from the evidence, that the mother of the plaintiff was a slave, and that she was not emancipated, according to the laws of Pennsylvania, Maryland or Virginia, and that she was purchased by the defendant as a slave, neither the plaintiff, nor any claiming; under her, is entitled to freedom, and the jury ought to find for the defendant. 2d, That the will of Christian Gingery did not emancipate the plaintiff. 3d, The plaintiff is barred by the statute passed by the legislature of Kentucky, from recovering in this action, so far as it depends upon a failure to comply with the
The counsel for the plaintiff then asked the court for an exposition to the jury, of the second instruction asked for and obtained by the defendant; particularly, whether the court intended to exclude the will from the jury or not; but the court refused to give any explanation, and repeated the instructions as given before. To all these decisions of the court the plaintiff excepted, and a verdict and judgment having been rendered against her, she has appealed to this court.
1. The main points in the cause arise out of the instructions given by the court to the jury, at the instance of the defendant, and out of the refusal of the court to instruct the jury as asked by the plaintiff. These points we shall first consider, leaving those of a subordinate character to be disposed of afterwards.
The first instruction given at the instance of the defendant, when understood as we apprehend it ought to be, presents no difficulty. It simply implies, that if the plaintiff was born a slave, and had not been emancipated according to the laws of either of those states in which she had resided, she was still a slave, This is a proposition too plain to admit of being made more so, by any commentary.
Nor does the second instruction asked for the defendant, present a question of any greater difficulty, or one entitled to more consideration. The clause in the will of Christian Gingery, before recited, whereby he devises the plaintiff to his wife during her natural life, or until the plaintiff should arrive at the age of thirty-one, is the only clause of the will which can, or is pretended to have any bearing upon the point; and that clause, though it may afford ground to conjecture that the testator either intended to emancipate the plaintiff, after the death of his wife, or at the age of thirty one, by some other instrument; or that he understood that she was at that period, entitled to her freedom in some other way, cannot, most assuredly, be construed, of itself, to operate as an emancipation. Thus to construe the will, would be to give it an effect, which it does not purport to be its object to accomplish, and would be wholly unjustified by any known rule of exposition.
2. The third instruction given at the instance of the defendant, presents a question of more importance, and to which the arguments of the counsel on each side were principally directed. The act of this state, of 1808, after reciting, “Whereas creditors, purchasers and others are exposed to great injustice, by the assertion, by persons held in slavery, of dormant claims to their freedom, founded upon certain acts of the legislatures of Virginia and Pennsylvania ; and the interest and peace of society requiring that all such claims should be brought to a speedy determination,” enacts, “that no writ, suit or action shall be sued out, commenced or prosecuted by any person of colour, claiming his or her freedom in consequence of a failure to comply with the abolition act of Pennsylvania, requiring a registry of such person, or his or her ancestress ; or in consequence of having been taken into Pennsylvania, contrary to the provisions of any act of the legislature thereof; or in consequence of a failure to take or record the oath prescribed by the act of the legislature of Virginia, entitled an act for preventing the further importation of slaves, or any act amendatory thereof, unless such writ, suit or action shall be sued out, commenced or prosecuted within two years from, the passage of this act; and it shall and may he lawful for any defendant or defendants to give the same in evidence, without specially pleading it.”
It is obvious, that this act, according to the plain and literal import of its language, embraces the plaintiff’s case, so far as her right to maintain the action depends upon a failure to have her registered according to the requisitions of the act of Pennsylvania, or to have taken the oath and have it recorded, as required by the act of Virginia, on the importation of a slave into that state; nor was it contended, that the act, if it can have any operation, would not be a bar to the plaintiff’s action, so far as her right depended upon such failure. But it is urged, that the act, in limiting the right to maintain the action to two years, is void, because it is repugnant, both to the constitution of the United States and to that of this state.
It cannot be pretended, that the constitution of the United States contains any provision which prohibits the states from passing acts of limitation, in general. It may indeed be questionable, whether an act limiting the time of bringing an action to enforce a contract, which, when made, was not subject to such limitation, would not be incompatible with that clause of the constitution which prohibits a state from passing any law impairing the obligation of a contract; for if, as is supposed by some, whose opinion is entitled to great weight, the obligation of a contract consists in the remedy which the law affords to enforce its performance, it would seem to follow, that an act limiting the time of bringing an action upon a contract, which, when made, was not subject to such limitation, would impair the obligation of the contract. But in this case the action is not founded upon contract, but upon tort; and, of course, the act of 1808 cannot, upon any construction of that clause of the constitution of the United States, he said to be incompatible with it.
3. It was not, however of that clause of the constitution of the United States, that the act of 1808 was contended by the plaintiff’s counsel to bean infraction; but of the clause which provides that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”—1st clause, 2d section, and 4th article.
Before we can determine whether she was a citizen, or not, of either of those states, it is necessary to as. certain what it is that constitutes a citizen. In England, birth in the country was alone sufficient to make any one a subject. Even a villain or a slave, born within the king’s allegiance, is, according to the principles of the common law, a subject; but it never can be admitted that he is a citizen. One may, no doubt, be a citizen by birth, as well as a subject ; but subject and citizen are evidently words of different import, and it indisputably requires something more to make a citizen, than it does to make a subject. It is, in fact, not the place of a man’s birth, but the rights and privileges he may be entitled to enjoy, which make him a citizen. The term, citizen, is derived from the Latin word, civis, and in its primary sense signifies one who is vested with the freedom and privileges of a city. At an early period after the subversion of the Roman empire, when civilization had again begun to progress, the cities in every part of Europe, either by usurpation or concession from their sovereigns, obtained extraordinary privileges, in addition to those which were common to the other subjects of their respective countries ; and one who was invested with these extraordinary privileges, whether he was an inhabitant of the city or not, or whether he was born in it or not, was deemed a citizen.—See Rees’ Cyclopædia, under the word Citizen. In England, a citizen is not only en. titled to ail the local privileges of the city to which he belongs but be has also the right of electing and being elected to parliament, which is itself rather an extraordinary privilege, since it does not belong to every class of subjects.—Com. Dig. Parliament, D. 6, 4 Inst. 6.
If we go back to Rome, whence the term, citizen, has its origin, we shall find, in the illustrious period of her republic, that citizens were the highest class of subjects to whom the jus civitatis belonged, and that the jus civitatis conferred upon those who were in possession of it, all rights and privileges, civil, political and religious.—Butler’s Horæ Juridicæ, 26, 27.
No one can, therefore, in the correct sense of the term, be a citizen of a state, who is not entitled, upon the terms prescribed by the institutions of the state, to all the rights and privileges conferred by those institutions upon the highest class of society. It is true, that females and infants do not personally possess those rights and privileges, in any state in the Union; but they are generally dependent upon adult males, through whom they enjoy the benefits of those rights and privileges; and it is a rule of common law, as well as of common sense, that females and infants should, in this respect, partake of the quality of those adult males who belong to the same class and condition in society, and of course they will or will not be citizens, as the adult males of the same class are or are not so. Nor do we mean to say, that it is necessary, even for an adult male to be a citizen, that he should be in the actual enjoyment of all those rights and privileges which belong to a citizen. He may not only not be in the actual enjoyment of those rights and privileges, but he may even not possess those qualifications, of property, of age, or of residence, which most of the states prescribe as requisites to the enjoyment of some of their highest privileges and immunities, and yet be a citizen ; but, to be a citizen, it is necessary, that he should be entitled to the enjoyment of those privileges
It results, then, that the plaintiff cannot have been a citizen, either of Pennsylvania or of Virginia, unless she belonged to a class of society, upon which, by the institutions of the states, was conferred a right to enjoy all the privileges and immunities appertaining to the state. That this was the case, there is no evidence in the record to show, and the presumption is against it. Free negroes and mulattoes are, almost everywhere, considered and treated as a degraded race of people; insomuch so, that, under the constitution and laws of the United States, they cannot become citizens of the United States.
4. It is true, that when the plaintiff resided in Pennsylvania and removed to Virginia, the constitution of the United States had not been adopted ; and prior to its adoption, the several states might make any person they chose, citizens. But as the laws of the United States do not now authorise any but a white person to become a citizen, it marks the national sentiment upon the subject, and creates a presumption that no state had made persons of colour citizens. And this presumption must stand, unless positive evidence to the contrary were produced. But none such was produced, either as to Pennsylvania or Virginia. On the contrary, it appears from the preamble of the abolition act of Pennsylvania, that the legislature of that state intended to confer upon those whom it was their object to emancipate, only a portion of the freedom which they themselves enjoyed ; and they could not, therefore, have designed to give them all the rights and privileges of citizens. Much less could they have designed to bestow those rights and privileges upon those who, like the plaintiff, were not intended to be emancipated ; but who might become free, by the failure of their owners to have them registered. And as it respects Virginia, we know that free people of colour have never been considered or treated, either in practice of the country or by the laws of the state, as possessing the rights and privileges of citizens. On the contrary, they are incapable of holding the lowest office in the government; they do not enjoy the right
The plaintiff, then, not being a citizen, either of Pennsylvania or Virginia, cannot be entitled to the benefit of the clause of the constitution in question, and the act of 1808, most clearly, cannot be an infraction of it. But, supposing her to have been a citizen of Pennsylvania when she resided there, and by her removal to Virginia, to have become a citizen of that state; she must, upon the same principle have become a citizen of this state, by her removal here; and as a citizen of this state, the clause of the constitution under consideration, would evidently not apply to the case. But again, admitting her still to have remained a citizen of either of those states; yet, as the act of 1808 operates as well upon citizens of this state, as upon those of any other, it cannot be a violation of the clause of the constitution in question; for it cannot, upon any principle, be construed to secure to the citizens of other states, greater privileges, within this state, than are allowed by her institutions to her own citizens.
We cannot, therefore, in any light in which we have been able to view the subject, consider the act of 1808 as an infraction of the constitution of the United States.
5. Nor can we think it a violation of the constitution of this state. It was contended, in argument, to be in contravention of the 13th section of the 10th article, which declares, “that all courts shall be open, and every person, for an injury done him, in his land, goods, person or reputation, shall have remedy by the due course of law, and right and justice administered, without sale, denial or delay.”
We cannot admit that this section should be construed to operate as a restriction upon the power of the legislature to pass acts of limitation. It would rather seem to require them to make laws for the expeditious administration of justice, than to permit litigation to be endless. In fact, the power of the legislature to pass such acts of limitation, has been already settled, and cannot now be considered as open for discussion in this court. The act of 1809, by which actions to re
Upon the whole, we can perceive no error in the instructions given by the court at the instance of the defendant.
With respect to the refusal of the court to instruct the jury as asked by the plaintiff’s counsel, little need be said. It is very apparent, that the court did not err in declining to give the first of those instructions ; for the possession of liberty by the plaintiff, without right, most obviously could have no effect upon the case; and if she had right, founded upon the failure to comply with the acts of Pennsylvania or Virginia, the act of this state, of 1808, literally applied to the case.
It is equally apparent, that the court did not err in refusing the second instruction asked for on the part of the plaintiff. It was, no doubt, the duty of the court to decide upon the admissibility of the will; but having admitted the will to go to the jury, the function of the court was performed, and it belonged exclusively to the jury, to draw the inferences of fact from it.
Nor do we perceive any error in the refusal of the court to give the exposition asked, of the second instruction given at the instance, of the defendant. Indeed, after the will had, in explicit terms, been admitted by the court to go to the jury, it was not only idle but indecorous, to ask the court whether it intended to exclude the will from the jury or not.
6. With regard to the minor points made in the cause, we deem it wholly unnecessary to enter into an
The judgment must be affirmed without costs.
1 Dig. 11.
Dissenting Opinion
dissented, and delivered his separate opinion, as follows:
AS I do not concur with a majority of this court, on several points decided in this cause, I have thought proper to deliver the reasons for my dissent.
The first important point of difference, is on the question, what constitutes a citizen of a state ? It is a short, but momentous question. On it important rights depend.
It has been contended in argument, and admitted, that he alone, who is entitled to the highest honors of the government, is a citizen, and that all others can not be entitled to the appellation. If we go back to Rome, for the origin of the word, and search the history of that government, it will be found, that the native was a citizen, and such others, as the government by her laws adopted. We are told, in sacred history, that an apostle claimed the privilege of being a Roman citizen, before a Roman, officer. The officer enquired into his title, and his answer was, that he was free born. His plea was admitted, when at the same time he was a Jew, born in Tarsus, after Cilicia was annexed to the Roman empire, and by that birth alone must have been entitled to the claim. But, not to take up time in adducing authorities on this inquiry, if it be admitted that the right of citizenship at Rome was conferred, and not hereditary, it can have no effect upon this question. The American colonies brought
We will here take occasion to mention the case of white females and infants. They, being not entitled to political advancement, cannot be citizens. The only answer given to this, is, that they are represented
Again, according to a well settled principle of the common law, now in force, none but citizens can hold our lands. By what authority, then, do single females, infants, or persons under thirty five hold them? Do the patents, conveyances and devises to such persons pass any title ? Cannot the legislature forfeit and take away all such lands, bar all rights of action vested in such persons, and even make them slaves ? For if none but citizens are protected by such constitutional provisions as the one in question, and such persons are not citizens, it follows, that there is no barrier against such invasions of their rights.
But again, if the definition of a citizen contended for, is correct in Virginia, persons of proper constitutional age, and possessing a freehold, are the only citizens; the rest are not. Let a white male, of full age, a native of Virginia, migrate to this country, who never held land there, and set up the privilege of a citizen of this state, under this clause of the constitution of the United States, which declares that “citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states;" his claim, according to the doctrine contended for, must be disallowed. He never was a citizen of Virginia, and therefore cannot be entitled to the privileges of a citizen here. His right to hold office, or to vote, may be well questioned; his right to hold land may be disputed, and even his right to breathe the air or tread the soil, may be denied ; he may be banished, or subjugated to slavery, in despite of all constitutional provisions. This, we know, is contrary to the universal understanding and practice in this and every other state. Such have held offices and filled our legislature ; have voted, and held lands, without it ever hav
But let us suppose again, that a citizen of this state, duly qualified to hold any office, removes to Virginia, but does not acquire land there. By the clause of the constitution now in question, he is entitled to the privileges of a citizen there. He may vote and hold office, the constitution of Virginia notwithstanding ; not because he is entitled to those privileges in Virginia, but because he acquired them here. Thus, the constitution Virginia must be prostrated before the provision in question, and one state must and will determine the rights, and qualification for office and suffrage, in an other. The same answer may be given to all the clauses of our constitution, if this definition of a citizen is adhered to, which require residence, previous to the exercise of office and suffrage. Every citizen of any other state, so soon as he places his foot here, may contend, logically, that the rights of office and suffrage alone constitute a citizen ; that he had these rights in the state from which he has come, and that, consequently, under the constitution of the United States, he possesses them here, and our constitution must yield. Such a doctrine would tend more to the consolidation of our government, than any yet promulgated.
These are but a few of many singular and perplexing consequences, which must grow out of the definition of the word, citizen, contended for as the true one, when used in the federal constitution.
A further argument against this definition of a citizen, within the meaning of the constitution of the United States, is taken from authority, and the uniform construction of the constitution of the United States, as well as is expressions in other parts of the same instrument. The 5th section of the 2d article, provides, “ that no person, except a nutural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such. The 2d section of the 3d article provides, that the judicial power of the United States shall extend to cases between “citizens of different states,” and “citizens” of the same state, claiming lands under different states. These clauses have ever been construed to extend to all those born and
The mistake on this subject must arise from not attending to a sensible distinction between political and civil rights. The latter constitutes the citizen, while the former are not necessary ingredients. A state may deny all her political rights to an individual, and yet he may be a citizen. The rights of office and suffrage are political purely, and are denied by some or all the states, to part of their population, who are still citizens. A citizen, then, is one who owes to government, allegiance, service, and money by way of taxation, and to whom the government in turn, grants and guarantees liberty of person and of conscience, the right of acquiring and possessing property, of marriage and the social relations, of suit and defence, and security in person, estate and reputation. These, with some others which might be enumerated, being guaranteed and secured by government, constitute a citizen. To aliens, we extend these privileges by courtesy; to others, we secure them—to male as well as female, to the infant as well as the person of hoary hairs. To all such, I would extend the clause in question, and then none of the perplexing consequences above enumerated will result. The citizen of Kentucky, who removes to Virginia, will have the benefit of it, although, for want of a freehold, that state may deny him the right to vote. The citizen of Virginia, who there never could vote, may vote here, after a sufficient residence, and the constitution of the United States and those of the different states receive their full effect, and move on harmoniously together; and it need not be contended, that the citizen of one state, having a right to vote where he resided, removing to another, has the right to vote, until he becomes qualified as the constitution of his newly adopted state requires.
I now come to apply this doctrine to the case of the unhappy subject of this suit, which is a task of delicacy and difficulty. Of delicacy, because a subject of the same nature has lately been discussed in our national councils, with regard to the admission of a sister state, when danger of marring the Union was rearing its head. Of difficulty, because most have taken part in this late contest, with feelings liable to extremes, leaving the truth in the middle ; and more
I waive the questions, whether any slave, emancipated in any manner, since the adoption of the federal constitution, can become a citizen, because born here; and whether any state can provide for the emancipation of these creatures, so as to make them citizens, while congress holds the power of adopting an uniform mode of naturalization. These questions are not involved in the case of Amy. Hence, the late Missouri question does not completely embrace it.
If Amy is entitled to her freedom, she acquired it previous to the adoption of the federal constitution, when there was nothing else binding the union together, but the articles of confederation. At that time, each state had the right of making what citizens it pleased ; and if that privilege had been bestowed by any one, on the Bashaw of Tripoli, he must then, and would ever since have remained a citizen. The constitution, when adopted, recognized all those then made, and provided for making them in future. The question, then, is, what did Pennsylvania do, with regard to the appellant ? In the preamble of the abolition act, passed the first day of March 1780, the legislature declares, that “they rejoice it is in their power to extend a portion of that freedom to others, which had been extended to them,’’ and that “they esteem it a peculiar blessing granted to them, that they were enabled, on that day, to add one more step to universal civilization, by removing, as much as possible, the sorrows of those who had lived in undeserved bondage.” The enacting part of this statute is clear and explicit. It declares, that all born after the passage of the act, should not be slaves, and then provides that all then in the state, whether slaves or servants until the age of thirty-one years, should be registered in the
Hence I conclude, that the act in question did confer upon Amy all civil rights above enumerated, and consequently, made her a citizen. The question then results, how was this grant preserved ? The articles of confederation, then in force, provided, in the fourth article, that “the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens, in the several states.” Under this article, the rights of the appellant were preserved in Maryland and Virginia, whither she went. Their laws did not oppose it. No law debarred her. Was she, then, a free inhabitant of Pennsylvania, by statute, and neither a pauper, vagabond nor fugitive from justice ? The privileges and immunities of a free citizen were secured to her in Virginia and Maryland, even though the appellation of citizen could not be applied to her. At the adoption of the federal constitu
I am aware, that this construction of the articles of confederation authorises each state to make citizens, and impose them upon other states, against their feelings and prejudices, and even requires each state to recognize the free inhabitants of one, in another, as free citizens ; yet this singular spectacle was presented under the articles of confederation, and such imperfections pointed the wisdom of that day to the adoption of the federal constitution. Apply these provisions to a white person even, of some barbarous nation, who had obtained such a grant from Pennsylvania as Amy did, and I could not sustain the limitation adopted by the law of this state, which gives right by taking away remedy. In other words, makes those slaves, whose right to freedom rests on the laws of a state, which never has, and never could recall its grant. That there may be such citizens, the constitution of this state supposes, in the 8th section of the 2d article, where it speaks of every free citizen, negroes, mulattoes and Indians excepted. But admit this conclusion to he incorrect, and that the act relied on as a bar in this case is constitutional, I do not conceive that it applies to a case where the party seeking freedom has been in the enjoyment of liberty, as Amy was in Virginia. If that application be correct, it enslaves again all those who have regained their liberty, for not being registered under the laws of Virginia and Pennsylvania. If they can be reclaimed and remedy is demanded, it is but to reply the act, and remedy is gone, without regard to lapse of time since the reclamation of the property. To such as claim their freedom by reason of their actual enjoyment, to the knowledge of the master, it ought not to apply. A right thus recognized, ought not to be held to come within the act.
I also dissent from the instruction given by the court below, on the paid of the appellee, that if the ju
Nor is the instruction relative to the will of Christian Gingery, free from objection. That court did not err in telling the jury that the will did not emancipate Amy ; but when asked to explain the instruction, or rather to let the will go to the jury, and that the devise of Amy for only thirty one years, might be weighed by them as a circumstance conducing, with other evidence, to show her claim, the court refused. It had been proved, that the Gingerys, who owned her, acknowledged that she was to be free at the age of thirty or upwards. The statute of Pennsylvania mentioned, recognized a class of that character. About the time, or after she was thirty-one, it was shown that she enjoyed her freedom in the neighborhood of those who claimed her and afterwards sold her
Nor do I concur in deciding that the want of a replication in this case bars the appeal. The cases establishing this doctrine, all turn upon the point that the plea might admit of different replications. In this case, however, the plea admits of but one answer, and cannot be avoided, but by a traverse of the matter alleged. Besides, the declaration and plea cannot both be true at the same time. She cannot have cause of action, and still be a slave. In the cases decided, the declaration and plea might both be true ; and there being no further answer given to the plea, and nothing disputed between the parties in the pleadings, of course judgment followed. Here, there is a contradiction, which each side maintains, and yet the judgment is affirmed, because there is no issue.
