Clayton’s Notebook, 178.[*]
High Court of Errors and Appeals of Delaware.
June, 1818.
Defendant had filed his petition in the Common Pleas suggesting that, although a freeman, he was held in servitude by Wilson and praying relief under 1 Del. Laws 381, c. 170. The Court of Common Pleas, after hearing the proofs and allegations of the parties, adjudged Negro George free and at liberty and entitled to all the benefits and advantages that a free Negro is entitled to in this state. From which Wilson appealed.
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CHANCELLOR RIDGELY. (Present JOHNS, C. J., COOPER, DAVIS and PAYNTER, JJ.)
It is the unanimous opinion of the Court with one exception that the adjudication of Common Pleas be reversed.
By 1 Del. Laws 435, c. 188, passed 1767 no negro slave shall be deemed free until his master shall have given security to the county in a recognizance in the sum of £60, to indemnify the county against any charge which may arise from the Negro’s inability to support himself. After this enactment, the case of Negro Rose v. McGarmont arose in the Court of Common Pleas. Rose, the Negro, had been declared free by McGarmont, but the security required had never been given. The Court of Common Pleas nevertheless adjudged her free, and that decision on appeal to the Supreme Court was affirmed, against the opinion of Chief Justice Killen. In the argument of that cause the case of bishop’s leases in England was much relied on, which, although declared by the Statute void unless made in a particular manner, are yet supported by the courts against grantor himself, and the remedy extended merely to the successor. (Semble, case of Registry Act also, vide Notes, End of Covenant.) We conceive the case of bishop’s leases not analogous. The remedy, it is true, was intended for the country, but there is no middle course between slavery and freedom, if in a case where no security has been given, the Negro be declared free, the master ceases to be answerable for the maintenance of the Negro, the master’s liability arising only out of the recognizance.
This very case of Negro Rose v. McGarmont gave rise to the explanatory Act, 2 Del. Laws 885, c. 145b, in the third section of which that decision is alluded to and disapproved of. This latter Act excepts in favor of slaves above eighteen and not exceeding thirty-five years who are “healthy and no ways decrepit.”
The defendant George in this case has failed to produce a manumission in writing under the hand and seal of his master and subscribed by one or more credible witnesses as prescribed by the Act 2 Del. Laws 1321, c. 124c, which declares every manumission made in any other manner utterly void.
George therefore is the slave of Wilson.
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