Charles Mahoney v. John Ashton. Opinion of the Court of Appeals


In the Court of Appeals
June Term 1802.

Reverend John Ashton
Charles Mahoney

Five Exceptions Stated in the record.

3rd Exception, The Court disagree with the General Court in their Opinion in this Exception. The Court are of opinion that the General Court ought not to have permitted the special Verdict found on the first trial which was set aside (because a fact was not sufficiently found) to be read in Evidence in the Second trial. They Consider it a good rule, that on a second trial, no advantage or use shall be made by either of the parties of the first pending or of the Opinion of the Court in setting aside that Verdict, by but that such second trial shall as far as possible be conducted as if no prior trial had been had.

The record before the Court proves the propriety of the rule. On the first trial, an objection was made by the Defendant below to a deposition offered by the Plaintiff, the General Court overruled the objection the Deposition was read and Defendants Counsel then took an Exception to their Opinion; By granting a new trial and admitting the Verdict in Evidence the Defendant then is deprived of the benefit of his Exception, and he is liable to be affected by the Verdict that may possibly in some measure have been influenced by the Evidence excepted to.

4th Exception. As to this Exception the Court are of Opinion that the General Court were right in their direction to the Jury. It is [illegible] stated that Ann Joice was in England and came from thence without shewing[?] her Condition previous to the period alluded to, whereby it doth not appear that She   she was ever held or claimed as a Slave at any time, and it might be that she was a white woman or native of England; presumption when admitted being in favour of freedom. In deciding this Exception the Court do not think themselves at liberty to travel out of the Exception, or notice any fact not therein stated.

5th Exception. Upon the fifth Exception this Court disagree with the General Court. It is in that Exception Stated, "that Ann Joice a negro woman was carried with her owner Lord Baltimore claiming her as a slave, from the Island of Barbadoes to England, and afterwards brought into this country by him claiming her as a slave between the year 1678 & 1681 and that she during her life was held and treated as a slave and that her Issue have been held as slaves ever since." It is not stated that her case was ever before a British or any other Tribunal, or had received a Judicial decision.

Great industry hath been used and great ability displayed by the counsel in the argument of this cause.

The Decision involving on the one hand the questioned of Freedom or Slavery to the Plaintiff below, and on the other great pecuniary interests to persons claiming negroes under similar circumstances demanded it.

The Court have felt the importance of the subject and given it their most serious consideration.

If this case was before a British court it would seem that the question should be decided according to the british Law as it stood between the years 1678 and 1681 and not by the Law as it may have been modified or altered subsequent to that period. No adjudged case in the British Books hath been cited, nor have the court been able to find one coming up to the case in the Exception. Opposing cases as well as opinions of particular Judges and Law writers have been   been cited as applicable to the case. About the period of Ann Joice's being in England, a diversity of opinions prevailed on that subject. At one period it was held by a Judge that a slave by being brought to England thereby became free some times it hath been held that Trover would lie, at other times that it would not That the Sale of a negro was a sufficient consideration to support assumpsit to pay the price, that a master deprived of his slave might support an action per quod servitium amisit.

By British Charters and British Acts of Parliament the Slave trade hath been authorised and encouraged, and slaves have been considered there as merchandize, as chattels, as property and have by a British Statute operating in this State been Subjected to be sold and disposed of as other property for the payment of debts. Lord Chief Justice Talbot and Sir Philip York in 1729 expressly declare that a slave coming from the West Indies with or without his master to Great Britain or Ireland, doth not become free and that his master's property or right in him is not thereby determined or varied &ca

And that his master may legally compel him to return.

This opinion is recognized by Hardwick acting as Chancellor in 1749, and that Trover would lie for a Negro.

Judge Blackistone in his commentaries in 1765 II Edition page 127. Says that a slave or negro the moment he lands in England falls under the protection of the Laws and so far becomes a freeman though the masters right to his service may probably still continue. And in page 424 Same Edition, repeats the same and adds that the Law will protect him in the enjoyment of his person and property. But yet with regard to any right which   which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as before, for this is no more than the same subjection for life, which every apprentice submits to for the space of seven years or more &c In the British books Slaves are Some times called Slaves or Servants, and it is said by Lord Mansfield in Somersets case. that there may be a Villien in Gross by confession. In the case of Somerset in 1772 Lord Mansfield mentioned the opinion of Sir Philip York and Lord Chief Justice Talbot in 1729, and recognized by Lord Hardwicke in 1749 and calls them two of the greatest men of their own or any times, and says he pays all due attention to their opinions. Lord Mansfield puts several questions as to the Law with respect to their Settlements, their wages. Actions for any slight correction coertion by their masters. in Somersets Cause the court declined deciding the question, Whether by being carried to England he thereby became free, but Say that they would Judge upon the return of the Habeas Corpus and according to their own Laws; which did not admit of so high an Act of Dominion as in that case had been exercised by the Master over his Slave, and therefore that Somerset must be discharged. Lord Mansfield in Somerset's case says that the State of Slavery is so odious that nothing can be suffered to support it but positive Law. In this Collision of individual opinions and opposing decisions in the British Cooks, this Court will not say what who would have,   have been the decision of a british Tribunal on the question stated in the Exception; and acting as a Court of an Independent Country, unfettered by any Political Stipulations on Subjects of this nature, and bound to decide according to the Laws of this State, they do not consider themselves at Liberty to adopt all an opinion that might possibly prevail in a foreign tribunal. By a positive law of this State in 1715, then yr province of Maryland, the relation of master and Slave is recognized as then existing, and all negroe and other Slaves then imported or thereafter to be imported into this province, and all Children then born or thereafter to be born of Such negroes or Slaves are declared to be Slaves during their natural lives.

This case being brought before the Court by Original proceeding we are of opinion that it must be governed by the Law of this State, and that in this case however the Laws of Great Britain in such Instances operating upon such persons there might interpose so as to prevent the exercise of certain acts by the master not permitted as in the case of Somerset yet upon the bringing Ann Joice into this State then the province of Maryland, the relation of master and Slave continued in its extent as authorized by the Laws of this State, and therefore that the Judgment of the General Court must be reversed, as to the other Exceptions this Court concur with the General Court.


Charles Mahoney
The Revd John Ashton

The Reasons of the Court of Appeals for their Opinion