The appellant was a slave in Maryland, and was purchased there as such by the appellee, but now claims her freedom under the second section of our act of assembly, passed the 17th of December, 1792,(a) which establishes, as a general rule, “that slaves, which shall hereafter be brought into this commonwealth, and kept therein one whole year, or so long, at different times, as shall amount to pne year, shall be free.”
It being admitted by the parties that thé appellant has been brought into this state since that law took effect, it is obvious that her right to freedom is thereby established, unless the appellee can show that this case comes within some of the exceptions contained in the act of assembly. He relies, for this purpose, on the 4th section, which declares “ that nothing in this act contained shall be construed to extend to those who may incline to remove from any of the XJnitéd States, and become citizens of this, if, within sixty days after such removal, he or she shall take” a certain oath therein prescribed.
But it is evident that the privilege conferred by this clause, of bringing'slaves into this commonwealth, can be claimed by those persons only, who, at the time of their removal, were citizens, not of this, but of some other state, and as it is admitted that the appellee was a native of this state, the question arises, "whether he had laid aside the character of citizenship thereby acquired, so as to entitle himself to the benefit of this proviso.
Nature has given to all men the right of relinquishing the society in which birth or accident may have thrown
I wish it to be distinctly understood, that my opinion that MiCartif never ceased to be a citizen of Virginia, and that, therefore, he could not bring his slaves with him on his return, has not been influenced by the circumstance of his having failed to comply with the requisites of our act of assembly concerning expatriation. The view I have taken of the subject has rendered any consideration of that act totally unnecessary. My opinion is founded solely on the impression that, according to the principles of general law, there is not sufficient evidence to prove, 1st. His intention to quit this state; and, 2d. The execution of that intention by his departing out of this commonwealth, and becoming a citizen of Maryland. Had there been sufficient evidence on these points, it might then have become necessary to inquire, whether he ought not, nevertheless, to be considered as a citizen of this state, inasmuch as he had omitted to relinquish that character in the manner prescribed by our act concerning expatriation.(a) But we should have been there met by the previous and important question, whether, as the principal part of that act is taken up in declaring the mode in which aliens may become citizens, the particular part relating to expatriation was not intended to point out the mode in which citizens might become aliens: and if so, whether that act can be made to apply to the case of a citizen of Virginia, who leaves this state and becomes a citizen of some other of the United States; the citizens of the other states, although contra-distinguished from citizens of this state, not being aliens with respect to this state, inasmuch as both the articles of confederation, and the constitution of the United States, entitle them to the privileges and immunities of citizens of this state. If arguments drawn from the long and uniform practice of a country are ever allowed to have any influence on a question concerning the con
It was decided by the supreme court of the United States, in the case of Scott v. Negro London, (3 Cranch, 324.) that the removal by the master, and the importation of the slave, need not be cotemporaneous and concomitant. I am inclined to concur in that construction of the act in question: but that point is not necessary to be now decided in the view I have taken of the subject.
The next question is, whether the appellee is a person coming within the meaning of the proviso of the act upon this subject.(a) That act declares, that slaves thereafter brought within the commonwealth, and remaining there one whole year, shall be free : to which penalty upon the importer, is added another of a pecuniary nature. The object of the law was, to prohibit the great political evil of introducing more slaves into the commonwealth : but as this prohibition, extended to all possible cases, might be too rigid, and as it was also a favourite policy with the legislature to increase the number of our citizens, the genei-al object of the law was relaxed and given up, in consideration of the latter benefit, in favour of the persons, and under the circumstances, embraced by that proviso. That proviso, however, does not extend to those who are already citizens of this commonwealth. I infer this, 1st. Because that idea is reprobated by the limitation, in the proviso, to those who shall “ remove” from any of the United States, “ and become citizens of this and, 2d. Because, in the latter part of the same proviso, the case of “ citizens of this commonwealth” is taken up, and the privilege of importation is confined, as to them, to slaves then owned by them, in any of the United States. This provision defines the extent of the privilege of citizens of this commonwealth in this particular; not only by reason of the
That there is both a general and a particular sense in which this relationship of a citizen is contemplated in our country, is evident from the constitution itself, which speaks of “ citizens of different states” (inter alia) in the judicial article; from various acts of congress, and judicial decisions on the same subject; and from the consideration, that a contrary idea would savour too much of consolidation, as throwing out of view the particular sovereignties of which the American confederacy is composed. We are told by Judge Paterson, in the aforesaid case of Talbot v. Jansen, and I entirely subscribe to the doctrine, that the situation of America, in this particular, is new, and may produce new and delicate questions; that we have sovereignties moving within sovereignties ; that allegiance to a particular state is one thing, and that to the United States is another; that a renunciation of the former allegiance does not draw after it a renunciation of the latter; and that a statute of the United States, on the subject of expatriation, is much wanted. If, under the non-existence of such a statute of the United States, the strong facts of a permanent residence in, and swearing allegiance to, another and a foreign country, were deemed equivocal, in that case, and as not necessarily importing an expatriation from the government of the United States, much less will the weaker and more equivocal facts existing in the case before us, be construed to have that effect, in relation to the commonwealth of Virginia; in which state, also, there being a statute upon the subject of expatriation, a noncompliance with the requisitions thereof will proportioa
The foregoing ideas, in relation to the connexion between the United States and the several states, go a great way to justify the idea, (upon which the general assembly undoubtedly proceeded, in the case before us,) of a particular and local citizenship to Virginia, and to the other states; by which, as the case may be, an exemption from the penalties of the act will stand or fall.
Whatever the case may be, as to the concurrence of the powers of the two governments, on the subject of the naturalization of aliens, and however the construction, on that subject, is to be adjusted between the respective governments, on the ground of the principles before adopted from the opinion of Judge Paterson, (if not of the whole court,) in the aforesaid case of Talbot v. Jansen ; it is clear to me, that the commonwealth of Virginia has never delegated to congress the exclusive power to legislate on the subject of the great natural right of expatriation, as relative to this commonwealth. Those topics of legislative power are entirely distinct and unconnected: the one relates to aliens, the other to citizens; the one to rights to be acquired, the other to rights to be abandoned; the one to a political, the other to
By the standard of our act, therefore, on this subject, this case is to be tested; and I entirely agree with Judge Ieedeíl in opinion, as aforesaid, that a citizen of Virginia cannot expatriate himself therefrom “ in any other manner.”
Of this construction the particular citizens of Virginia cannot complain; 1st. Because it is the act of their oxvn government, upon a subject, undoubtedly within its power and jurisdiction; 2d. Because it is beneficial to all the citizens, that this great right should he placed upon a foundation which excludes all possible doubt as to the validity of its exercise, instead of leaving the matter at large, and carving out an infinity of litigation and uncertainty, in this particular; and, 3d. Because the exercise of that right, under the act, is as free as air, and depends upon volition only. As for the citizens of other states, it is not for them to complain, that privileges are denied to the citizens of Virginia, which are extended to them: privileges, too, which are granted
On these grounds, I am of opinion to reverse the judgment of both courts, and render judgment in favour of the appellant, for her freedom.
The subject having been nearly exhausted by my brother judges, my opinion in this important case will be concise.
The 2d section of the act, passed the 17th of December, 1792, “ to reduce into one the several acts concerning slaves, free negroes and mulattoes,” declared in general terms, that “ slaves, which should thereafter be brought into this commonwealth, and kept therein one whole year together, or so long, at different times, as should amount to one year, should be free.” The 4th section of the same act modified this general regulation by certain provisoes, or exceptions. The question then is, has the appellee, McCarty, brought his case within any "of those exceptions ? And I am clearly of opinion that he has not.
The case of Scott v. Negro London, 3 Cranch, 324. (which has been cited and much relied on by the counsel for the appellee,) is essentially different from this case; the great point of distinction being that, in that case, the true owner of the slave was a citizen of Maryland who removed into this state, and within sixty days after his removal, took the oath prescribed by law; and it was decided that his rights were not to be affected by the acts of another person, over whom he had no control, and which were done without his knowledge or consent; whereas in this case, the appellee, McCarty, is, and always has been, a citizen of Virginia, and evidently appears to have endeavoured to evade the provisions of the law.
The judgment, therefore, must be reversed, and entered in favour of the appellant, for her freedom.
(a).
Rev. Code, v. 1. p 186.
(a).
Grot. b. 2. c. 5. s. 24. Puff. b. 8. c. 2. p. 868. Vattel, b. 1. c. 19. s. 220. 223. 225. Virg. Bill of Rights, art. 1.
(b).
Puff. b. 8. c. 11. s. 3. p. 869. Hein. b. 2. c. 230.
(a).
Puff. 868, 869. Vatt. b. 1. c. 19. s. 225.
(b).
Const. of U. S. art. 4. s. 2. Art. Conf. art. 4.
(a).
Rev. Code, v. 1. p. 207. c. 110 s. 5. passed the 23d December, 1792. October Sess. 1783, c. 16. s. 3. Ch. Rev. 213.
(a).
Rev. Code, v. 1. p. 186.
(a).
3 Dallas, 152.
(a).
Amendm. to the Const. art. 12.