The right to freedom under the act of Maryland which prohibits
the bringing of slaves into that state is not acquired by the
neglect of the master to prove to the satisfaction of the naval
officer or collector of the tax that such slave had resided three
years in the United States, although such proof be required by the
act.
Error to the judgment of the Circuit Court for the District of
Columbia in the County of Washington upon the petition for freedom
filed by Negro Ben, against Sabret Scott, who claimed the
petitioner as his slave.
The ground upon which the petitioner claimed his freedom was
that he had been imported into the State of Maryland contrary to
the act of assembly of that state, passed in the year 1783,
entitled, "An act to prohibit the bringing of slaves into this
state," by which it is enacted,
"That it shall not be lawful, after the passing this act, to
import or bring into this state, by land or water, any negro,
mulatto, or other slave for sale or to reside within this state,
and any person brought into this state as a slave contrary to this
act, if a slave before, shall thereupon immediately cease to be a
slave and shall be free, provided that this act shall not prohibit
any person, being a citizen of someone of the United States, coming
into this state with a
bona fide intention of settling
therein, and who shall actually reside within this state for one
year at least, to be computed from
Page 10 U. S. 4
and next succeeding his coming into the state, to import or
bring in any slave or slaves which before belonged to such person,
and which slave or slaves had been an inhabitant of someone of the
United States for the space of three whole years next preceding
such importation, and the residence of such slave in some one of
the United States, for three years as aforesaid antecedent to his
coming into this state, shall be fully proved to the satisfaction
of the naval officer or collector of the tax, by the oath of the
owner, or someone or more credible witness or witnesses."
Upon the trial, the defendant below took two bills of
exceptions.
The first was to the opinion of the court that it was incumbent
on the defendant (Scott), in order to bring himself within the
proviso contained in the first section of the act of 1783, to show
to the jury that it has been fully proved to the satisfaction of
the naval officer, or collector of the tax, by the oath of the
owner, or some one or more credible witness or witnesses, that the
petitioner was a resident of some one of the United States for
three years antecedent to his coming into the State of Maryland,
and that it was not sufficient for the defendant to prove, on the
trial, to the satisfaction of the jury, that the defendant, being a
citizen of someone of the United States, and coming into the State
of Maryland with a
bona fide intention of settling
therein, and who actually resided within the said state for one
year at least, computed from and next succeeding his coming into
the state, imported the petitioner, who then belonged to the
defendant, and that the petitioner had been an inhabitant of
someone of the United States for the space of three whole years
next preceding such importation.
The second bill of exceptions was to the refusal of the court to
admit as evidence two certificates made during the trial, the one
by the collector of the customs and naval office of the United
States,
Page 10 U. S. 5
for the district and port of Georgetown in the District of
Columbia, and the other by a collector of taxes, appointed by the
levy court for the County of Washington, in that district; the
purport of which certificates was that Scott had, on that day, (16
June, 1807), by his own oath, proved, to the satisfaction of each
of those officers respectively, that Ben
"was a resident of the State of Virginia, one of the United
States, three whole years next preceding the time when the said
mulatto Ben was brought into the State of Maryland."
The cause was argued by C. Lee and Jones, for the plaintiff in
error, and by Swann and F. S. Key, for the defendant.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
In this case, three opinions were given by the circuit court, to
each of which the defendant in that court excepted. These opinions
were, in substance
1. That the master of a slave imported into the State of
Maryland while the act, passed in the year 1783, entitled "An act
to prohibit the bringing slaves into this state," was in force,
could not be admitted to prove the fact that such slave had resided
three years, previous to his importation into Maryland, in some one
of the United States unless he could show that this fact had been
proved to the satisfaction of the naval officer, or collector of
the tax.
2. That a certificate made by the naval officer and collector of
the port of Georgetown, dated on 16 June, 1807, certifying that
this fact was proved to his satisfaction on that day, did not
satisfy the law.
3. That a similar certificate given by the collector
Page 10 U. S. 6
of the tax for the County of Washington did not satisfy the
law.
The correctness of these opinions is to be tested by comparing
them with the act under which the plaintiff in the court below
claimed his freedom.
The enacting clause of that law prohibits the importation of
slaves into the State of Maryland, and gives freedom to such as
shall be imported contrary to that act. A proviso excepts from the
operation of the enacting clause those slaves which, having resided
for three years within someone of the United States, and being the
property of the importer, should be imported into the State of
Maryland by a person intending to become a resident thereof, and
who should actually reside therein for the space of twelve months
thereafter. The act then adds
"and the residence of such slave in some one of the United
States for three years as aforesaid, antecedent to his coming into
this state, shall be fully proved to the satisfaction of the naval
officer or collector of the tax by the oath of the owner or some
one or more credible witness or witnesses."
By the plaintiff in error it is contended that this part of the
law is directory; that it prescribes a duty to the importer of a
slave within the description of the proviso, but does not make his
title to that slave dependent on the performance of this duty.
By the defendant it is contended that this clause forms a part
of the proviso, and that the fact of previous residence within some
one of the United States can be proved by no other testimony, if
that which is here prescribed be wanting.
The act, in its expression, is certainly ambiguous, and the one
construction or the other may be admitted, without great violence
to the words which are employed.
The great object of the proviso certainly was to
Page 10 U. S. 7
permit persons, actually migrating into the State of Maryland to
bring with them property of this description which had been within
the United States a sufficient time to exclude the danger of its
being imported into America for the particular purpose. The great
object of the provision was that the fact itself should accord with
this intention. The manner in which that fact should be proved was
a very subordinate consideration. Certainly the provisions of the
law ought not to be so construed as to defect its object, unless
the language be such as absolutely to require this
construction.
It would be a singular and a very extraordinary provision that a
naval officer, or the collector of a tax, should be made the sole
judge of the right of one individual to liberty and of another to
property. It would be equally extraordinary that the oath of one of
the parties, probably in the absence of the other, should be
conclusive on such a question. It would be not less strange that
the manner in which this
quasi-judge should execute his
duty should not be prescribed, and that not even the attempt should
be made to preserve any evidence of his judgment.
These considerations appear to the Court to have great weight,
and the language of the law ought to be very positive to deprive
them of their influence.
Upon an attentive consideration of that language, the majority
of the Court is of opinion that the property of the master is not
lost by omitting to make the proof which was directed before the
naval officer or the collector of the tax, and that the fact on
which his right really depends may be proved, notwithstanding this
omission.
The words of this part of the section do not appear to the Court
to be connected, either in their sense or in their mode of
expression, with the proviso. It is a distinct and a substantive
regulation. In legislation, the conjunction "and" is very often
used when a provision is made in no degree dependent
Page 10 U. S. 8
on that which precedes it, and in this case no terms are
employed which indicate the intention of the legislature
prescribing this particular duty to make the right to the property
dependent on the performance of that duty.
It is then the opinion of the majority of the Court that the
fact of the residence of the plaintiff below within the United
States was open for examination, even had his master omitted
entirely to make the proof of that residence before the naval
officer or collector of the tax, and consequently that the circuit
court erred in refusing to admit testimony respecting that
fact.
The opinion of the Court on this point renders a decision on the
other exceptions unnecessary.
