March. υ. lawyer would have made it, nor would the Judge have 1826. suffered it to be put upon the record. This is, indeed, a novel argument. If the records of this Court be searched, M'Michen it would be found that questions as plain (plainer there Amos, &c. could not be) have been often made, and in some instances, incorrectly decided, in the Inferior Courts. It would be strange indeed, if the very plainness of the case were to be made the only foundation of doubts and difficulties. It is however contended, that there may be cases in which the wife may be the proper person to take the oath, as where the slaves are her separate property, or where they are held by her as a trustee, or as executrix or administratrix, &c. But, I think it very clear, from the positive finding of the jury, that the jury did not mean to submit a question on any such case. I think it very manifest, that the Act of Assembly intended the oath to be taken. by the proprietor of the slaves; although the proprietor is not otherwise described than as the person removing and bringing the slaves with him. When, therefore, the jury speak of Richard Wetherhead, and apply to him the very words found in the Act of Assembly, removing and bringing the slaves with him, they intended to speak of him as the proprietor; and when they speak of the wife, they speak of her merely as wife. Besides, if the wife had been the proprietor, it cannot for a moment be believed, that the jury would have been permitted to be silent as to a fact, which must have been known to the counsel and the Court, to be so important to the correct decision of the But be this as it may, it is sufficient to say, that it does not appear by the verdict, that any of the supposed cases existed, or were alleged by the parties to exist; or if alleged to exist, the jury have negatived it, by not finding it to exist. No verdict of this kind could ever stand, if the party or the Court were allowed to suppose facts, not found in the special case. It is not necessary that the jury shall expressly find, that certain facts do not exist. The mere silence of the jury is tantamount to an express find cause. V. 1826. ing that no facts exist, repugnant to the general conclusion March. they have drawn in favor of the party. In the case of M'Michen Hook v. Nanny, 2 Munf. 379, (which, like this, was a Amos, &c. case for freedom,) the jury find certain facts, and then conclude, "we therefore find the plaintiffs free." Judgment was rendered for the plaintiffs, and was affirmed by the unanimous opinion of this Court. Judge COALTER remarked, "The jury, in this case, find two facts: 1. That Nanny was brought into this Commonwealth by Jones, from North Carolina, subsequent to the 5th of October, 1778. 2. They also find from inspection, that the plaintiff is a white woman. I say nothing," (adds the Judge,) "of the other finding, viz: 'that if the plaintiff was a slave, it doth not appear that Jones did comply with the provisions of the Act to prevent the farther importation of slaves,' because, (says the Judge,) the jury need not find the negative of a fact, which the defendant must shew, in That part of the order to support his plea of justification verdict, therefore, must be clearly rejected as surplusage. The case will stand upon the other two facts, accompanied by the general finding that the plaintiffs are free. The facts aforesaid are entirely distinct in their nature, and not depending at all on the same testimony; and either of them, if found upon proper legal testimony, will entitle the party, ipso facto, to freedom, unless the defendant can shew something to take his case out of their influence." In the case of Garnet v. Sam, 5 Munf. 542, the same principle is advanced by this Court. Suppose, in the case before us, the jury had found the plaintiffs free, subject to the opinion. of the Court, on the following fact; that Wether head removed from Maryland to this State, in the year 1800, Most unquesbringing the plaintiffs with him as slaves. tionably, this Court would adjudge them to be free. But, as it was proved to the jury, that the wife took the oath, they submit the single question, whether this taking of the oath was a compliance with the law; and as it is admitted that it was not, I cannot see how it can make the case of the defendant better than if it had not been stated at all. The objection, therefore, as to the uncertainty of the 1826. verdict, is without foundation. March. V. It is said, that according to the principles established in M'Michen Garnet v. Sam &c. 5 Munf. 542, and Abram &c. v. Amos, &c. Matthews, 6 Munf. 159, it might have been left to the jury, to presume from the facts found, that the wife, in this case, was the proper person to take the oath. In both of these cases, more than 20 years had elapsed, between the importation of the slaves and the commencement of the action; and it was decided, that such a lapse of time should be left to the jury as the foundation of a presumption, that the oath required by law had been rightly taken. And considering the great difficulty which would generally attend the proving such a fact, after such a lapse of time, nothing could be more reasonable than such a presumption. But such presumption, however well founded, was liable to be repelled by proofs. In the present case, the time was short of 20 years. It is not pretended that the husband took the oath. That fact is negatived by the express finding, that the oath was taken by the wife. The facts, which alone could justify the oath by the wife, do not depend upon such fugitive testimony, as did the fact presumed in the cases referred to. If the wife had the separate property in the slaves, or if she were trustee, executrix or administratrix, such fact might have been proved by testimony in writing or on record; or, if that evidence had been lost, its former existence might have been established by parol testimony; or, if the husband had died within the 60 days, that fact, (admitting it to be sufficient to justify the oath by the wife,) was very different from the fact presumed in the cases referred to. It did not depend upon the testimony of a single witness who may have died. It must have been a fact of notoriety, and susceptible of easy proof. I therefore think it ought not to have been left to the jury, to presume such facts as would justify the wife in taking the oath, until at least 20 years had elapsed. But be this as it may, we do not know that any such question Amos, &c. 1826. was made at the trial; and it is now too late to make it. March. If such presumption was pressed on the jury, it might have M'Michen been, and probably was, repelled by opposing testimony. The jury have not, in fact, made any such presumption; and it is not competent to the Court to make it for them. But it is contended, that the right of the appellees to freedom, under the Act of 1792, was taken away by the Act of 1819, which releases all forfeitures and penalties incurred under former laws, and not already recovered or enforced. 1 Rev. Code, 422, sec. 4. It may be admitted, that the right of a slave to be free, in consequence of being imported contrary to the Act of 1792, was a forfeiture imposed upon the owner, by way of penalty. But at the very moment that this forfeiture was incurred by the owner, under that Act, a perfect right to freedom vested in. the slave, by the same Act. I call it a perfect right, because its enjoyment might be enforced by due course of law, the moment it vested; and it vested as soon as the violation of the law was complete; viz: as soon as 12 months elapsed from the importation. He was from that moment a free man "illegally held in slavery." If it were not. so, he could never recover freedom; for, it is the business of Courts, not to create, but only to enforce existing rights. Again, our laws declare, "that all children shall be bond or free, according to the condition of the mother." Maria v. Surbaugh, 2 Rand. 228. If a female slave had been brought into this State, under the Act of 1792, had remained here 12 months, (the requisites of the law not being complied with,) and then had had a child, and died; it is perfectly clear, that such child would be entitled to, and would receive his freedom; and this decisively proves, that the mother was in fact, free, although she had not been declared so by the judgment of a Court of Law. The Act of 1819 contemplated cases, in which rights might be absolutely vested under former laws, which were not intended to be disturbed; and also cases in which forfeitures had been incurred, where no right had vested in any particu ข. lar persons. The Act of 1806 afforded instances of this 1826. March. latter description. That Act declares, that an illegal importer of slaves shall forfeit all right to the slaves, and that M'Michen such right shall vest in the overseers of the poor of any Amos, &c. county, who should apprehend, or attempt to apprehend them. The right forfeited by the owner, did not vest, however, in any one, until the slaves were apprehended, or until an attempt was made to apprehend them. These were the forfeitures, and such as these, that the Act of 1819 intended to remit; and such remission violated the rights of no one. But under the Act of 1792, a right to freedom was actually vested in the imported slaves; and it was the intention of the Act of 1819, to preserve that right. The judgment must be affirmed. 4 143 5L 738 The COMMONWEALTH V. SCOTT and THOMPSON. The Court of Appeals has no jurisdiction in the case of an information against the members of an unchartered bank, for a violation of the law of 1816, 2 Rev. Code, 111, because that Act is a penal law. The Attorney General filed an information in the Richmond Chancery Court, against John C. Scott and William M. Thompson, under the Act of 1816, 2 Rev. Code, 111, the one as president, and the other, as treasurer of an unchartered banking company, in Culpeper county. The information charges, that there exists, at this time, at Culpeper Court-house, or elsewhere in the said county of Culpeper, an association entitled, or styling themselves, the Culpeper manufacturing and agricultural association, or some such name, &c. and that the said association, although they have no charter or law, incorporating the said compa 1826. March. |