US SUPREME COURT DECISIONS

A wife having separated herself from her husband, for ill treatment by him, applied to the County Court of Prince George, Maryland, for alimony, which was allowed to her pendente lite. The husband gave the wife a female negro slave and some other property in discharge of the alimony. She removed to Washington, hired out the slave, and afterwards, in consideration of a sum of money and for other considerations, she manumitted by deed the slave and her two infant children, the eldest not three years old. Sometime after the agreement between the husband and wife, a final separation took place between them by a verbal agreement, each to retain "the property each had, and to be quits forever," and the wife relinquished all further claim for alimony. After the death of the wife, the husband claimed the female and her children as his slave. Held that they were free by virtue of the deed of manumission executed by the wife.

This is a case where a transfer of property must be considered as having been made for a valuable consideration. It was given in lieu of alimony, decreed by a court of competent jurisdiction pendente lite, and passed the property as fully to the wife, as if the husband had conveyed it to a third person for a valuable consideration. In regard to that property, the wife is to be considered as a feme sole, and her right to dispose of it followed as a matter of course. Construction of the Act of Assembly of Maryland of 1796, 2 Maxey's Laws 360, relative to the manumission of slaves.

The terms of the Maryland act and the policy of it were meant to prevent the manumission of slaves who, from infancy, age, or decrepitude would become burdensome to the community at the time the deed of manumission should take effect, and to such as were over the age after which manumission is prohibited. But the slave manumitted must either be positively in the latter predicament or be so decrepit, if under the age of forty-five, and if neither one nor the other and being in infancy, it must stand so unrelated to any other free person, colored or white, that it can have no claim, natural or artificial, to support from anyone, and must therefore be a charge upon the charity of the community or a charge upon its poor laws. It would be an unreasonable restraint upon the privileges of manumission as it is granted in this act if it were interpreted to exclude the manumission of mother and an infant child, the former being of healthy constitution and able to maintain it, as of other children who, in the natural progress of human life would be able in a few years to maintain themselves by labor and who would find in their adolescence persons who would gladly maintain them for the services they could render.

Agreements between husband and wife during coverture for the transfer from him of property directly to the latter are undoubtedly void at law. Equity examines with great caution before it will confirm them. But it does sustain them when a clear and satisfactory case is made out that the property is to be applied to the separate use of the wife, where the consideration of the transfer is a separate interest of the wife, yielded up by her for the husband's benefit or of their family, or which has been appropriated by him to his uses, where the husband is in a chanrobles.com-red

Page 35 U. S. 584

situation to make a gift of property to the wife and distinctly separates it from the mass of his property for her use. Either case equity will sustain though no trustee has been interposed to hold for the wife's use.

On 4 August, 1834, the defendant in error presented to the circuit court a petition stating that she and her two infant children were entitled to their freedom and that she and they were unjustly held as his slaves by Joseph Wallingsford, the plaintiff in error. Joseph Wallingsford appeared to the subpoena issued on the petition and put in a plea denying the claims of the petitioner. The case was tried by a jury at the circuit court held in March, 1835, and a verdict was found for the petitioner under the charge of the court, from which the plaintiff in error took three bills of exceptions and prosecuted from the judgment of the court this writ of error.

On the trial of the cause in the court below, the petitioner produced a regular deed of manumission, duly recorded, executed by Rachel Wallingsford, the wife of the plaintiff in error, dated 8 September, 1826, by which, and for divers good causes and considerations, and in consideration of the sum of $150 paid to her, she released the petitioner and her children from slavery, the petitioner being at that time nineteen years old and her two female children of the respective ages of three years and five months.

The petitioner also proved that Rachel Wallingsford resided in the City of Washington, for many years as a feme sole previous to the date of the deed, that she had a suit for alimony depending in Maryland against Joseph Wallingsford, he residing in that state, and that the court ordered her husband to pay her $120 per year as alimony pendente lite; that sometime after that allowance had been made to her, her husband gave the petitioner to her, then about twelve years old, and some other property in discharge of the order of alimony, his wife agreeing not to prosecute the claim any further; that after the petitioner was so given to Mrs. Wallingsford, she lived with her or was hired out in Washington until the date of the deed of manumission; that on the death of Mrs. Wallingsford, the plaintiff in error claimed her and her children as his slaves.

The court permitted the deed of manumission to be read in evidence to the jury by the counsel for the petitioner, expressly leaving it to the jury to say or find from the evidence whether the title of the said Rachel to the said negro Sarah Ann, at the time of the chanrobles.com-red

Page 35 U. S. 585

execution of the said deed, was absolute, or only for the life of the said Rachel, and the court instructed the jury that that question was open for their consideration upon all the evidence in the cause.

The defendant in the circuit court excepted to the admission of the deed of manumission in evidence and to the instructions given to the jury

The defendant, by his counsel, prayed the court to instruct the jury that if they should believe from the evidence aforesaid (viz., the evidence stated in the first bill of exceptions) that Mrs. Wallingsford held the petitioners by virtue of an agreement made between her and her husband, without the intervention of a trustee; that said agreement is null and void, and could give no power to Mrs. Wallingsford to manumit the slaves held by virtue of such an agreement. The court refused to give this instruction, and the defendant excepted to the refusal.

The defendant prayed the court to instruct the jury that if they should believe from the evidence that an agreement was made between the defendant and Mrs. Wallingsford by which she was to have the petitioners in lieu of being supported by him as his wife, yet if there was no covenant on the part of a trustee or someone capable of contracting with the husband that he should not be liable to the maintenance of his wife, the same is null. The court refused to give this instruction, and the defendant excepted.

The defendant prayed for the court to instruct the jury that if they should believe from the evidence that an agreement existed between him and Mrs. Wallingsford that he should transfer the petitioner to her on condition that she should relinquish all claim to alimony against him, that then, should the jury believe from the evidence that she did not comply with this condition and that she did prefer against him a subsequent claim for alimony, that then the agreement cannot be enforced against the defendant, nor can he be deprived of any of his rights by virtue of the said agreement. The court refused to give this instruction, and the defendant excepted.

The defendant then prayed the court to instruct the jury that if they should believe from the evidence aforesaid that the petitioners or any of them, at the time of the execution of the deed of manumission aforesaid, were not able by their labor to procure for themselves sufficient food or raiment, with other necessary requisites of life, then the said deed of manumission as to them or such of them was inoperative, which instruction the court gave, and also on the chanrobles.com-red

Page 35 U. S. 586

prayer of the counsel for the petitioners, further instructed the jury that if they should believe from the said evidence that the negroes above-mentioned were of healthy constitutions and sound in mind and body, and that their mother was capable by labor to procure to them sufficient food and raiment, with other requisite necessaries of life, and did maintain them, then such children are not under the incapacity intended by the Maryland law.

The defendant excepted to the last instruction. chanrobles.com-red

Page 35 U. S. 588