Williams v. Johnson

• Decision Date: 14 May 1869
• Citation: 30 Md. 500
• Parties: MRS. WESLEY WILLIAMS, Administratrix of RACHEL WILLIAMS v. ADELINE JOHNSON, Administratrix of JOHN JOHNSON.
• Court: Maryland Court of Appeals

30 Md. 500

MRS. WESLEY WILLIAMS, Administratrix of RACHEL WILLIAMS v. ADELINE JOHNSON, Administratrix of JOHN JOHNSON.

Court of Appeals of Maryland

May 14, 1869

APPEAL from the Circuit Court for Howard County.

This was an action of trover brought by Rachel Williams the appellant's intestate, on the 15th of October, 1860 in the Circuit Court for Anne Arundel county, against John Johnson, the intestate of the appellee, whereby she sought to recover the value of a certain negro man, her slave.

At the October Term, 1860, of that Court, the defendant was summoned and appeared by his counsel, who at April Term following entered a general demurrer to the nar., to which there was a joinder.

At April Term, 1862, the demurrer, not having been disposed of was withdrawn by the defendant, and upon his motion the case was removed to Howard county.

Subsequently the death of the plaintiff was suggested, and her administratrix, the present appellant, became a party to the suit, and on suggestion of the death of the defendant, the present appellee, as his administratrix, became the party defendant.

At September Term, 1865, the general issue was pleaded. At March Term, 1867, by agreement the plea was withdrawn and the defendant demurred to the nar., and the plaintiff joined in the demurrer. The demurrer was held good by the Court, and judgment was entered thereon. The plaintiff appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, ALVEY and ROBINSON, J.

Frank. H. Stockett, for the appellant:

The single point submitted to this Court, is the effect of the abolishment of slavery by the Constitution of 1864, on the right of the plaintiff to recover in this action for the loss of her intestate's slave, by the wrongful act of the defendant's intestate.

The constitutional provision terminating slavery, in no way affected the right of the plaintiff to maintain the present action--the right of the plaintiff was a vested right, and incapable of being divested. The right to recover for the wrong complained of, had accrued and become a vested right immediately on the consummation of the wrong, and long before the law abolishing slavery was in existence; and the construction contended for, would be to give to it an ex post facto operation. As against such construction as this, the Courts have always decided, and the current of decisions is uniform, decided and unbroken.

As a general rule, statutes are never so construed, unless it should clearly appear that such was intended by the express words of the law, and not even then, if by such construction the law would divest vested rights. Smith's Com. on Stat. Law, &c., secs. 533, 760, 761, 763, 775; Gilmore vs. Shuter, 2 Mod., 310-- same case, Sir Thos. Jones, 108; Dash vs. Van Kleek, 7 John. Rep., 477; Lewis vs. Brackenridge, 1 Black., 220; Prof. Ken. Pur. vs. Laforce, 3 Green., 275; Lewis vs. Webb, 3 Green., 326; Saterlee vs. Matherson, 2 Peters, 380; Wilkinson vs. Leeland, 2 Peters, 627; Butler vs. Palmer, 1 Hill, 324; Steamship Co. vs. Joliffe, 2 Wallace, 450.

Alexander B. Hagner, for the appellee:

Slavery in Maryland had its legal support only in the local or municipal law of the State; the constitutional abolition of the institution in 1864, operated a complete repeal of this local law, and left slavery without any legal support; the usual consequences of a repeal upon inchoate rights, having their origin and support in the repealed law, applied to this constitutional abrogation of slavery, and the cause of action in this case was an inchoate right at the time of the adoption of the Constitution, and perished as an incident, with the destruction of slavery itself.

If slavery ever existed in England, (which is denied by all the legal authorities,) it had disappeared centuries before the settlement of Maryland, and the Act of Parliament respecting the slave trade did not operate to change the common law, so as to tolerate its existence in that country. Mahoney vs. Ashton, 4 H. & McH., 303.

The decision in 2 nd Ld. Raymond, 1274, that trover would not lie for a negro, and the judgment in Somerset's case, 1 Lofft., 17, that a slave, held as such under the local laws of a colony, became free on reaching England, are founded on this axiom in English law.

The colonists of Maryland claimed to have brought with them to their new homes the common law of England. It was not by virtue of that law that they could defend their holding of slaves, when negroes were first introduced into the provinces, after their importation into Virginia, in 1620. Between the first introduction of negroes into Maryland, after the settlement in 1632, and the year 1663, no common law of the province had grown up which could have been pleaded in a provincial Court, in defence of their enslavement. The common law can only acquire force by immemorial usage, certainly not within thirty-one years.

In 1663, chapter 30 was passed, which expressly declared that all negroes within the province, and their descendants, should be slaves. This Act was continued and made perpetual by the Act of 1675, ch. 2, and these laws constituted the first legal defence which a Court could have recognized in a controversy as to the master's right. Butler vs. Boarman, 1 H. & McH., 371.

But even if there were then in Maryland an unwritten law which might have been invoked in a Maryland Court in defence of the master's claim, still it was merely a local or municipal custom, as contradistinguished from the common law of England, (which was against slavery,) and from any common law of the colony, which could only acquire the force of law by immemorial usage.

It is clear, therefore, upon the statutes, as it is in reason and universal law, that slavery existed here by the local or municipal law of the State, as firmly protected by it as any other property of a citizen, but still the creature of express law, or of municipal custom, and not of the common law, or in virtue of the fanciful theories which have sometimes been urged in its defence. Jones vs. Vanzandt, 2 McLean, 600; Rankin vs. Lydia, 2 A. K. Marshall, 470; Prigg vs. The Commonwealth of Pennsylvania, 16 Peters, 611.

This action, therefore, instituted to recover damages for an alleged injury to the possession of a slave, is in no degree derived from the principles of the common law, but has its only sustenance in Legislative enactments in derogation of the common law, following a custom, which however general in the State and wise in itself, had not hardened by time into a common law right when the Legislature began to pass laws on the subject.

It is equally clear that the action does not spring from contract in any manner, but it is an action sounding in tort, having been brought, as expressed in the Code, for "a wrong independent of contract." Code of Public General Laws, Art. 75, sec. 22, sub-sec. 29; Evans' Prac., 62.

Such a cause of action is in no respect a "vested right," as contended for by the appellant, which was not affected by the abolishment of slavery; but having its origin only with the establisment of the local law, it could have no greater vitality than the law itself. Smith's Commentaries, secs. 174, 267, 759, 761, 765, 766, 767, 768 and 775; 1 Bouv. Inst., sec. 95; B. & O. R. R. vs. Wash. city, 12 G. & J., 399; Keller vs. State, 12 Md., 322; Owings vs. State, 22 Md., 120; Day vs. Day, 22 Md., 537; Smith vs. Thursby, 28 Md., 244; Mayor, &c., of Annapolis, vs. The State, 30 Md. 112; 1861-2, ch. 128; Selectmen vs. Jacob, 2 Tyler, 192; Fales vs. Mayberry, 2 Gallison, 560; Reynolds vs. Furlong, 10 Md., 321; Baugher, et al. vs. Nelson, 9 Gill, 302; Chitty on Contracts, 657, 658; De Sobry vs. De Laistre, 2 H. & J., 228; Constitution of 1864, Bill of Rights, Art. 24, and Art. 3, sec. 36; Constitution of 1861, Bill of Rights, Art. 24 and Art. 3, sec. 37.

The "vested right to sue," depends upon the existence of the subject in respect of which the suit is brought, and when the subject ceases to exist in the view of the law, the right to sue is gone also.

In the embargo cases, and in actions for penalties, the vested right of action is perfect as long as the particular matter in respect of which the action is brought, is recognized as alive by the law. But the expiration of the embargo law by limitation of time, and the repeal of the statute under which the penal action is brought, equally destroy any such "vested right" of action.

The title of the property, in an action of trover, vests in the defendant upon the payment of the damages recovered. This is a necessary incident to this action, and if it cannot be gratified in this case, the action is not sustainable. The laws of the State have prevented compliance with it, and...