17 Ga. 253 | Ga. | 1855
By the Court.
delivering the opinion.
This was a bill filed by complainants, to enjoin their sale as’ slaves, and to establish their freedom. They are negroes. The bill was demurred to generally; the demurrer was sustained and the bill dismissed. The judgment of the Court on the demurrer is alleged as error — 1. The bill alleges that Mar
’ That Margaret is the daughter of Rebecca, and' attaihed the age of 30 in 1835. 4. That Duvall was, at the time of his death, domiciliated in Maryland; and that his will was in strict accordance with the laws of that State; and that the executor ought to have carried it out. 5. By act, contrivance or fraud, she was sent off to Georgia; and after having been repeatedly sold as a slave, in the year 1840, or thereabouts, she was purchased by Michael M. Healey, who departed this life in 1850, after having made a will appointing Hardeman and Moreland, then and now of Jones County, and McCarthy, now of Bibb County, his executors. 6. Executors qualified and became possessed of Margaret and her children; and having obtained leave to sell them, will sell them on the first day of January next ensuing, before the court-house door in Jones County, unless restrained by the equitable interposition of the Court. 7. That Knight had applied to the Honorable Robert Y. Hardeman, Judge of the Superior Courts of Jones County, to be appointed guardian of said woman and children, which he refused to do; and to which decision he excepted, and will carry it to the Supreme Court by writ of error ; and before a decision will be made on said writ of error, the negroes will be sold and removed beyond the limits of the State. 8. If it wore in his power to sue at Law for their freedom, the negroes would be sold and removed beyond the limits of the State, unless defendants are prevented from selling them. 9. He has no remedy at Law, because his witnesses, to prove the identity of the negroes, reside in Maryland; and their attendance cannot be procured before the time appointed for the sale, because Hardeman, defendant, is the Judge applied to, and who refused to appoint Knight, next friend, &e’ of the negroes, guardian; whose decision was excepted to, and
Is there equity in the bill ?
The first Act upon this subject is the Provincial Statute of 1770, (Cobb’s Digest, 971.) By the 1st section of this Statute, it is enacted — “That all negroes, Indians, mulattoes or mestizoes, who now are or shall hereafter be in this Province, (free Indians in amity with this Government, and negroes, mulattoes or mestizoes, who now are or hereafter shall become free excepted,) and all their issue and offspring born or to be born, shall be, and they are hereby declared to be, and remain forever hereafter, absolute slaves, and shall follow the condition of the mother, and shall be taken and deemed, in law, to be chattels, personal, in the hands of their respective owners or possessors, and their executors, administrators and assigns, •to all intents and purposes whatsoever: Provided always, that if any person or persons whatsoever, on behalf of any negro, Indian, mulatto or mestizoe, do apply to the Chief Justice or Justices of his Majesty’s General Court, by petition, either during the sitting of said Court, or before the Chief Justice or any of the Justices of the same Court, at any time in the vacation, the said Chief Justice or any of the said Justices shall be, and he and they is and are hereby empowered to admit any such person, so applying, to be guardian for any negro, Indian, mulatto or mestizoe, claiming his or her freedom; and such guardian shall be enabled, entitled and capable, in Law, to bring an action of trespass in the nature of ravishment
Section II. “ In any action or suit to be brought by any such guardian as aforesaid, appointed pursuant to the direction of this Act, the defendant shall enter into a recognizance with one or more sufficient sureties to the plaintiff, in such sum as the said General Court shall direct, with the condition that he shall produce the ward of the plaintiff at all times, when required by the Court, unless such defendant shall prove, upon oath, to the satisfaction of the said Court, his inability to produce such ward; and that while such action or suit shall be pending and undetermined, the ward of the plaintiff shall not be abused or misused.”
Is this Act of force in this State ?
It was adopted, according to the express terms of the Act of
The next inquiry is, what tribunal shall perform the functions which devolved upon the General Court, as it was called, under the Provincial Act of 1770 ? Undoubtedly our Superior Courts. All of our legislation recognizes the fact that the powers exercised by the old Court passed, sub silentio, into the several Superior Courts when the State Government was organized; and the Judicial powers were distributed amongst the different Courts. The law regulating the partitioning of land is a notable instance of this transition. The Provincial Statute upon this subject was enacted as early as 1767. It recites, that it was inconvenient, in this Province, to pursue the method of dividing lands and tenements by writ of partition, as practised in Great Britain; and that it was necessary to provide a more easy and less expensive manner of obtaining partitions. It, therefore, empowers the “General Court of Pleas” to-grant writs of partition, &c. And thus, from 1767, three years before the Slavery Act of 1770 was passed, down to 1827, the jurisdiction of the “ General Court of Pleas” was exercised by our Circuit Courts, without any express authority to that effect. And what is a little remarkable, the Act of 1827, to cut down the number of partitioners from eleven to five free-holders, recites, in the preamble, that “whereas, by the Act of 1767, it was - made the duty of the ‘ Superior Courts’ in this State, &c. when in truth the Superior Courts, as such, had no existence, except-in its prototype and predecessor, the General Court of Pleas.”' (See Cobb’s Digest, 581, 2, 3.)
Much is, after all, assumed and understood in the legislation; of a people, as in every thing else, otherwise our own system;
Sec. II. “ It shall be the duty of the Justice of the Inferior •Court, before whom the examination is had, to reduce the statement to writing, and to return the same to the Clerk of the Inferior Court of the county, who shall docket the case, ■ stating the names of the parties, &c. which shall stand for trial the first Court after the same is docketed, unless either party, for want of evidence, or other sufficient cause, should move to continue the cause, which may be done for one term and no ■longer.”
Sec. III. “ The Inferior Court shall cause the parties to make up an issue involving the complainant’s right to freedom, which shall be submitted to a Jury as in other cases: but either party being dissatisfied with the verdict, shall be permitted to appeal to the Superior Court, without giving bond -and security, as in other cases.”
This Act, it will be seen, contemplates a proceeding to be instituted at the instance of the colored person. By the Act of 1837, provision is made, that “upon the complaint of any free white person, upon oath, showing that he has good reason to believe and does believe that any person or persons of color are free and are fraudulently held in slavery,” it is made the duty of any Justice of the Inferior Court of any county of this State, to issue his warrant, directed to the Sheriff or any lawful constable, to arrest the holder as well as the slave, and to cause both to be brought before him, that due inquiry may be had into all the circumstances of the case; and if, upon such examination, the said Justice shall be satisfied that there is probable ground to believe that such persons of color are improperly held in a state of slavery, to require the person so detaining them to enter into bond, with sufficient security, payable to the party making the affidavit as the prochein ami of the slave, conditioned for the delivery of the slave, in obedience to the mandate of the Court, to abide its final order, and that said colored person shall not be removed beyond the limits of the State in the meantime; and on failure to do so, the person of color is to be delivered to the complainant to the like effect, &e. (Cobb’s Digest, 1011.)
And as to the other ground of equity, to wit: the inability of the complainant to procure the attendance of the Maryland witnesses to establish the identity of Margaret Phillips and her descendants, in time to prevent the sale, there is no averment in the bill that the attendance of these witnesses was expected at any future time. The-Courts have no power to coerce their attendance, living in another jurisdiction. But waiving this objection, we say that under each of the Acts already cited, abundant provision is made for protecting persons of color from being eloined or removed beyond the jurisdiction of the ■State before a trial can be had. And a resort to this, would have prevented all the mischief apprehended from the approaching sale.
Decisions have been read from Virginia, Tennessee and sev
As to the position that a bona fide purchaser should be protected, inasmuch as these people failed to give notice of their claim to freedom at the time they were sold, we attach no importance to that. It would be preposterous and unjust to visit such consequences upon persons in their condition.
We have, in this State, the most stringent Statutes which the ingenuity of our wisest statesmen could devise, to prevent
To my mind, this is a plain case.
No one pretends that negroes can be carried to New York or any other free State, and held there in perpetual bondagéby their owner, in defiance of the laws and policy of that State. With what more propriety can slaves be brought here and emancipated ? Such a doctrine is wholly inadmissible. It might be used to subvert the domestic institutions of every slave State in the Union. Our Courts of Justice are powerless to exercise an authority so repugnant to the declared will of their own Government.
But I forbear to discuss this point, inasmuch as the decision below may be sustained-upon the other ground.