Eleanor Toogood's Petition

Date: [unknown] [unknown]
Location: Annapolis, Province of Maryland
Surname/tag: Molloyd Toogood Fisher Black_Heritage

Contents 1 Introduction 2 1734: Ann Fisher's Petition for Freedom 3 1743: Petition for Freedom: Ann Fisher's Children 3.1 Transcription of the Original Text 3.2 Transcription with Bullets Added 3.3 Deposition of Ann Fisher 3.4 Court's Response 3.5 Transcription by Benjamin Royden Henry 3.6 Bill of Exceptions 4 1782 Transcript of Eleanor Toogood's Petition for Freedom and Attached Documents 4.1 Summary of 1734 Judgment 4.2 Deposition of John Thackrell 4.3 Deposition of Eleanor Hall 4.4 First Deposition of Mrs. Ann Beall 4.5 Second Deposition of Mrs. Ann Beall 4.6 Deposition of Francis Rawlings 4.7 Deposition of William Goldsmith 4.8 Extracts from Will of James Beale 4.9 Extract from Inventory of John Beale 4.10 Bill of Sale Goldsmith to Ross 4.11 Disposition 4.12 Opinion 5 Sources

Introduction

This profile supports the narrative of an unusual family with Irish, Asian and African ancestors, who found themselves enslaved in colonial Maryland. They went to court three times and finally succeeded in claiming freedom.

There are two profiles for this narrative:

• This profile, Eleanor Toogood's Petition is intended to be the repositiory for transcriptions of the various court documents involved.
• The companion profile, Fighting Against Enslavement -- The Children of Mary Molloyd provides a summary of the cases and an annotated list of all the persons named in any of the court cases.

1734: Ann Fisher's Petition for Freedom

On 11 June 1734 Ann Fisher entered the following petition in the Anne Arundel County court:

Petition of Ann Fisher humbly showeth that your petitioner's grandmother was a White Woman who served her time in Saint Mary's County who had your petitioner by an East India Indian, who became a free Molato after serving some time to Major Beale of Saint Mary's County afsd. and after his decease came to John Beale, Esq., of this county where she now lives. that your petitioner is now made a slave during her life which your petitioner humbly conceives is contrary to Law. Your petitioner's case tenderly considered, your petitioner most humbly begs your worship's opinion in the premises; and your petitioner as in duty bound shall ever pray ...

... .adjudged by the court here that the petitioner is a Slave during life by virtue of an act of assembly made in the year 1664

... and for it appears to the court here by depositions legally attested that the petitioner's mother was lawfully married by a priest of the Romish Church, one Mr. Robert Brooke, to a negro man named Dick, a slave then belonging to Mr. Thomas Beale of Saint Mary's County by which said slave, the petitioner's mother had the petitioner and several other children after marriage. The petitioner now being about thirty two years of age. (p. 83, 11 June 1734) ^[1]

1743: Petition for Freedom: Ann Fisher's Children

Transcription of the Original Text

By Richard Fisher, a Negro slave, Mary had a number of children, the petitioners. ^[2]

Ann Fisher, Robert Fisher, James Fisher, Richard Fisher, Mary Fisher, Frances Fisher, Edward Fisher, and Charles Fisher by William Cumming their attorney Preferred to the Court here the following petition vizt. ^[3]

To the Worshipfull his Lordship's Justices of Anne Arundel County Now in Court sitting. The petition of Ann Fisher, Robert Fisher, James Fisher, Richard Fisher, Mary Fisher, Frances Fisher, Edward Fisher, and Charles Fisher Humbly showeth that your petitioners are all the sons and Daughters of a Certain Mary Fisher of Ann Arundel County a free Woman and a slave that the afsd. Mary Fisher your Petitioner's Mother is the daughter of a certain Mary Molloyd Born in Ireland who came into this Province a servant for a term of years and served part of her servitude with Madam Vansweringen and the rest with Mr. Thomas Beale since Deceased. That during the last of the afsd. servitude the afsd. Mary Fisher your petitioner's Mother was born of the afsd. Mary Molloyd her Mother who then Declared and Charged a certain Peter an East India Indian who then lived with the Lord Baltimore in the City of St. Mary's to have been the Father and begetter of the afsd. Mary Fisher that the afsd. Mary Fisher for many years was unjustly Detained by John Beale of Ann Arundel County, Gentleman, son of the aforesaid Thomas Beale, a Slave, that during that time your Petitioners were born, and a certain Richard Fisher a Negro slave is said to be reputed Father to your Petitioner. That your Petitioners are advised that as their said Mother was the issue of a white Woman that by Law they are no slaves but are entitled to their freedom. But so it may please your Worships, your petitioner Ann Fisher by Thomas Gassaway of Baltimore County, Gentleman, upon petition of Robert Fisher, by Thomas Jennings of Anne Arundel County, Gentleman, your petitioner James Fisher by John Dorsey, son of Caleb Dorsey of Ann Arundel County aforesaid Gentleman, your petitioner Richard Fisher by Richard Dorsey of Anne Arundel County afsd. Gentleman, your petitioner, Mary Fisher by Richard Warfield Junr. of Anne Arundel County afsd. Gentleman, your petitioner Frances Fisher by Colonell Henry Ridgely of Anne Arundel County afsd., your petitioner Edward Fisher by Philip Hammond of the County afsd. Esquire, and your petitioner Charles Fisher by Elizabeth Beale of the County widow are all hindered of their liberty and are kept as slaves by the respective forementioned Persons. In order that your Petitioners May have a fair and impartial tryal and may be releived in all the singular the Premises according to law and Justice. May it Please your Worships to grant your Petitioners have that Summons's may issue to the afsd. Thomas Gassaway, Thomas Jennings, John Dorsey, Richard Dorsey, Richard Warfield, Junr., Colonell Henry Ridgely, Philip Hammond, and Elizabeth Beale to appear at a certain day to answer the premises and to stand and abide to such order and Decree as shall be made therein with the liberty to summons such evidences as your petitioners shall conceive materially to appear at a Certain day and your petitioners pray, etc. Signed William Cumming June 7, 1743. Which aforegoing Petition being read and heard the same is by the Court here rejected. Whereupon the said Petitioners by their attorney afsd. pray an appeal to the Provincial Court to be held in Annapolis the third Tuesday of October Next.

Transcription with Bullets Added

Bullets have been added to the text.

14 June 1743. The Petition of Ann Fisher, Robert Fisher, James Fisher, Richard Fisher, Mary Fisher, Frances Fisher, Edward Fisher, and Charles Fisher by William Cumming their attorney ^[2]

Preferred to the Court here the following petition vizt.

To the Worshipfull his Lordship's Justices of Anne Arundel County Now in Court sitting.

The petition of Ann Fisher, Robert Fisher, James Fisher, Richard Fisher, Mary Fisher, Frances Fisher, Edward Fisher, and Charles Fisher Humbly showeth

• that your petitioners are all the sons and Daughters of a Certain Mary Fisher of Ann Arundel County a free Woman and a slave
• that the afsd. Mary Fisher your Petitioner's Mother is the daughter of a certain Mary Molloyd Born in Ireland who came into this Province a servant for a term of years and served part of her servitude with Madam Vansweringen and the rest with Mr. Thomas Beale since Deceased.
• That during the last of the afsd. servitude the afsd. Mary Fisher your petitioner's Mother was born of the afsd. Mary Molloyd her Mother who then Declared and Charged a certain Peter an East India Indian who then lived with the Lord Baltimore in the City of St. Mary's to have been the Father and begetter of the afsd. Mary Fisher
• that the afsd. Mary Fisher for many years was unjustly Detained by John Beale of Ann Arundel County, Gentleman, son of the aforesaid Thomas Beale, a Slave, that during that time your Petitioners were born, and a certain Richard Fisher a Negro slave is said to be reputed Father to your Petitioner.
• That your Petitioners are advised that as their said Mother was the issue of a white Woman that by Law they are no slaves but are entitled to their freedom.

But so it may please your Worships,

• your petitioner Ann Fisher by Thomas Gassaway of Baltimore County, Gentleman, upon petition of Robert Fisher, by Thomas Jennings of Anne Arundel County, Gentleman,
• your petitioner James Fisher by John Dorsey, son of Caleb Dorsey of Ann Arundel County aforesaid Gentleman,
• your petitioner Richard Fisher by Richard Dorsey of Anne Arundel County afsd. Gentleman,
• your petitioner, Mary Fisher by Richard Warfield Junr. of Anne Arundel County afsd. Gentleman,
• your petitioner Frances Fisher by Colonell Henry Ridgely of Anne Arundel County afsd.,
• your petitioner Edward Fisher by Philip Hammond of the County afsd. Esquire, and
• your petitioner Charles Fisher by Elizabeth Beale of the County widow are all hindered of their liberty and are kept as slaves by the respective forementioned Persons.

In order that your Petitioners May have a fair and impartial tryal and may be releived in all the singular the Premises according to law and Justice. May it Please your Worships to grant your Petitioners have that Summons's may issue to the afsd. Thomas Gassaway, Thomas Jennings, John Dorsey, Richard Dorsey, Richard Warfield, Junr., Colonell Henry Ridgely, Philip Hammond, and Elizabeth Beale to appear at a certain day to answer the premises and to stand and abide to such order and Decree as shall be made therein with the liberty to summons such evidences as your petitioners shall conceive materially to appear at a Certain day and your petitioners pray, etc. Signed William Cumming June 7, 1743.

Which aforegoing Petition being read and heard the same is by the Court here rejected. Whereupon the said Petitioners by their attorney afsd. pray an appeal to the Provincial Court to be held in Annapolis the third Tuesday of October Next.

Deposition of Ann Fisher

In a separate document ^[2]

Ann Fisher humbly showeth that your petitioner's grandmother was a White Woman who served her time in Saint Mary's County who had your petitioner's mother by an East India Indian, who became a free Molato after serving some time to Major Beale of Saint Mary's County afsd. and after his decease came to John Beale, Esq., of this county where she now lives. that your petitioner is now made a slave during her life which your petitioner humbly conceives is contrary to Law. Your petitioner's case tenderly considered, your petitioner most humbly begs your worship's opinion in the premises; and your petitioner as in duty bound shall ever pray ... adjudged by the court here that the petitioner is a Slave during life by virtue of an act of assembly made in the year 1664 ... and for it appears to the court here by depositions legally attested that the petitioner's mother was lawfully married by a priest of the Romish Church, one Mr. Robert Brooke, to a negro man named Dick, a slave then belonging to Mr. Thomas Beale of Saint Mary's County by which said slave, the petitioner's mother had the petitioner and several other children after marriage. The petitioner now being about thirty two years of age. ^[2]

Ann Fisher deposes that her mother Mary "was lawfully married by a priest of the Romish Church, one Mr. Robert Brooke, to a negro man named Dick, a slave then belonging to Mr. Thomas Beale of Saint Mary's County". This document also states that Mary Fisher "became a free Molato after serving some time to Major Beale of Saint Mary's County afsd. and after his decease came to John Beale, Esq., of this county where she now lives. In the first document, the petitioners claim that since their mother was the issue of a white woman, they are not to be kept as slaves:

• Ann Fisher, b. ca 1711 (aged about 32 in 1743), kept as slave by Thomas Gassaway, Baltimore Co, Gentleman
• Robert Fisher, kept as slave by Thomas Jennings of Anne Arundel County, Gentleman
• James Fisher, kept as slave by John Dorsey, son of Caleb Dorsey of Ann Arundel County, Gentleman
• Richard Fisher, kept as slave by Richard Dorsey of Anne Arundel County, Gentleman
• Mary Fisher, kept as slave by Richard Warfield Junr. of Anne Arundel County, Gentleman
• Frances Fisher, kept as slave by Colonell Henry Ridgely of Anne Arundel County
• Edward Fisher, kept as slave by Philip Hammond of Anne Arundel County
• Charles Fisher, kept as slave by Elizabeth Beale of Anne Arundel County, widow

Court's Response

The petition was rejected by the court and appealed to the Provincial Court at its next session.

==1782 The Successful Suit==

The text of the final opinion: Eleanor Toogood against Doctor Upton Scott. ^[4]

COURT OF APPEALS OF MARYLAND, GENERAL COURT

October, 1782, Decided

Transcription by Benjamin Royden Henry

The text of the final opinion: Eleanor Toogood against Doctor Upton Scott. ^[4]

COURT OF APPEALS OF MARYLAND, GENERAL COURT

October, 1782, Decided

[**1] THIS was a petition for freedom; the petitioner claiming her freedom by reason of her being a descendant from a free white woman.

At the trial of the cause the following bill of exceptions was taken.

The defendant offered evidence, that the petitioner was the daughter of a certain Ann Fisher; and also produced in evidence, the following judgment, to wit:

"Ann Fisher against John Beale.

"To the worshipful, the Justices of Anne Arundel County: The petition of Ann Fisher humbly showeth, that your petitioner's grandmother was a white woman, who served her time in Saint Mary's County, who had your petitioner by an East-India Indian, who became a free mulatto after serving some time to Major Beale in Saint Mary's County aforesaid, and after his decease came to John Beale, Esq. of this county, where she now lives; that your petitioner is now made a slave during her life, which your petitioner humbly conceives is contrary to law. Your petitioner's case tenderly considered, your petitioner most humbly begs your worships' opinion in the premises; and your petitioner as in duty bound shall ever pray," &c. "Which petition being read and heard, and the allegations of both [**2] parties being heard and mature deliberation being thereupon had, it is adjudged by the court here, that that the petitioner is a slave during life, by virtue of an act of assembly, made in the year 1664, relating to servants and slaves, under which act the petitioner's freedom or slavery depends; and for that it appears to the court here, by depositions legally attested, that the petitioner's mother was lawfully married by a priest of the Romish Church, one Mr. Robert Brooke, to a negro man named Dick, a slave then belonging to Mr. Thomas Beale, of Saint Mary's County, by which said slave, the petitioner's mother had the petitioner and several other children after marriage; the petitioner now being about thirty-two years of age." "In testimony that the foregoing is a true copy from Liber I. B. No. 1. folio 83. I have hereunto set my hand, and affixed the seal of office, this third day of September, in the year 1782. "Nick. Harwood, Cl." Which said Ann Fisher, in the said judgment mentioned, was the mother of the present petitioner, Eleanor Toogood. And the defendant contended that the said judgment was conclusive evidence against the petitioner, and that she ought [**3] not to be permitted to give in evidence any thing to prove that the said Ann Fisher was a free woman at the time of the said judgment rendered. But the Court (Hanson, J.) was of opinion, and so determined, that the said judgment was only conclusive against the said Ann Fisher, and was not conclusive evidence against the said Eleanor Toogood: To which opinion the defendant's counsel excepted. The court gave judgment for the petitioner for freedom; and the defendant appealed to the Court of Appeals, where the case was argued on the bill of exceptions at May term, 1783. ^[4]

Bill of Exceptions

[**1] THIS was a petition for freedom; the petitioner claiming her freedom by reason of her being a descendant from a free white woman.

At the trial of the cause the following bill of exceptions was taken.

The defendant offered evidence, that the petitioner was the daughter of a certain Ann Fisher; and also produced in evidence, the following judgment, to wit:

"Ann Fisher against John Beale.

"To the worshipful, the Justices of Anne Arundel County: The petition of Ann Fisher humbly showeth, that your petitioner's grandmother was a white woman, who served her time in Saint Mary's County, who had your petitioner by an East-India Indian, who became a free mulatto after serving some time to Major Beale in Saint Mary's County aforesaid, and after his decease came to John Beale, Esq. of this county, where she now lives; that your petitioner is now made a slave during her life, which your petitioner humbly conceives is contrary to law. Your petitioner's case tenderly considered, your petitioner most humbly begs your worships' opinion in the premises; and your petitioner as in duty bound shall ever pray," &c. "Which petition being read and heard, and the allegations of both [**2] parties being heard and mature deliberation being thereupon had, it is adjudged by the court here, that that the petitioner is a slave during life, by virtue of an act of assembly, made in the year 1664, relating to servants and slaves, under which act the petitioner's freedom or slavery depends; and for that it appears to the court here, by depositions legally attested, that the petitioner's mother was lawfully married by a priest of the Romish Church, one Mr. Robert Brooke, to a negro man named Dick, a slave then belonging to Mr. Thomas Beale, of Saint Mary's County, by which said slave, the petitioner's mother had the petitioner and several other children after marriage; the petitioner now being about thirty-two years of age." "In testimony that the foregoing is a true copy from Liber I. B. No. 1. folio 83. I have hereunto set my hand, and affixed the seal of office, this third day of September, in the year 1782. "Nick. Harwood, Cl." Which said Ann Fisher, in the said judgment mentioned, was the mother of the present petitioner, Eleanor Toogood. And the defendant contended that the said judgment was conclusive evidence against the petitioner, and that she ought [**3] not to be permitted to give in evidence any thing to prove that the said Ann Fisher was a free woman at the time of the said judgment rendered. But the Court (Hanson, J.) was of opinion, and so determined, that the said judgment was only conclusive against the said Ann Fisher, and was not conclusive evidence against the said Eleanor Toogood: To which opinion the defendant's counsel excepted. The court gave judgment for the petitioner for freedom; and the defendant appealed to the Court of Appeals, where the case was argued on the bill of exceptions at May term, 1783. ^[4]

1782 Transcript of Eleanor Toogood's Petition for Freedom and Attached Documents

Note: While the Maryland County currently is spelled Anne Arundel with an "e", the name is spelled consistently in the 1782 Court documents without an "e" as Ann Arundel.

Schweninger Collection May 1783 Court of Appeals (Judgments) No. 15. Upton Scott vs. Eleanor Toogood; record May 1783; docket May 1783; typescript summary of case n. d. ; record of court of appeals 6 May 1783; deed of mortgage 19 October 1790. Dr. Upton Scott is a leading citizen of Annapolis; Eleanor Toogood commands the services of Jeremiah Townley Chase, later Chief Judge of the Court of Appeals. She is successful in her suit; lower court judgment affirmed.

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Eleanor Toogood vs. Upton Scott

October Term 1782

Petition for Freedom

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Hall of Records, 1783 Papers in Appeal of Petition from Freedom from Slavery

Dr. Upton Scott was a Leading Citizen of Annapolis. His house is still one of the show houses of Annapolis. This case was a hard fought one. Petitioners for Freedom Commanded the services of able lawyers, and Eleanor Toogood was represented by Jeremiah Townley Chase, Afterwards Chief Judge of the Court of Appeals. She was finally successful in her suit.

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Maryland:

At a Court of Appeals begun and held at the City of Annapolis on the first Tuesday of May being the fifth day of the second month in the year of our Lord one thousand seven hundred and eighty three, and in the seventh year of the Independence of the United States of America.

Present:

The Honourable Benjamin Rumsey Esquire Chief Judge

The Honourable Benjamin Maskato; Thomas Jacob; Solomon Wright, James Murray: Esquire Judge

David Bradford, Clerk.

In the records and proceedings of the same court, amongst others is the following to wit:

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Dr. Upton Scott vs. Eleanor Toogood, May, 1783

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The State of Maryland

At a General Court begun and held at the City of Annapolis for the Western Shore of the said State on the second Tuesday of October being the eighth day of the same Month in the Year of our Lord one thousand seven hundred and eighty two.

Present:

The Honourable Alexander Combe Hanson Esquire Judge

Thomas Norwood, Gentleman Sheriff.

Thomas Hodgkin, Clerk

Amongst other Proceedings was the following to wit:

IJC Eleanor Toogood versus Igs. J. H. Upton Scott:

Petition. To the Honourable the General Court for the Western Shore of Maryland now in Court sitting. The humble petition of Eleanor Toogood sheweth that your petitioner is unjustly and illegally deprived of her Liberty and detained in Slavery by Doctor Upton Scott of Ann Arundel County although the said Doctor Upton Scott is sensible that Petitioner is descended from a Free white Woman and well entitled to her freedom. Your petitioner therefore most humbly Prays your Honours to take her case into consideration and afford her such relief in the premises as is agreeable to Law and consonant to Justice and as to your Honors shall seem meet. And that the said Upton Scott may be compelled by Process of your Honourable Court to be and appear before your Honours immediately to answer the premises and that Subpoenas pray for the following witnesses to wit Francis Rawlings Ann Beall and Ann Toogood. And your petitioner as in duty bound will pray etc.

Which being read and heard and mature Deliberation thereupon had it is ruled and ordered by the Court that Summons issue against the said Upton Scott for his appearance have immediately to wit on the second Tuesday of May being the 14th day of the same month Anno Domini 1782 which issued accordingly and was by the Sheriff of Anne Arundel County to whom the said Writ was directed returned thus endorsed, viz.

Summoned by Tho. Harwood Sheriff. And the said Upton Scott appears in Court here in his proper person whereupon it is ordered and Ruled by the Court here that he give Security in the sum of two hundred pounds current money not to prevent or obstruct the Petitioner from attending this court from time to time in support of her petition. Whereupon the said Upton Scott acknowledges to owe and stand justly indebted to the said Eleanor Toogood in the sum of two hundred pounds current money to be levied of his Body Goods and Chattles

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Lands and tenements for the use of the said Eleanor Toogood in case he the said Upton Scott shall at any' time during the continuance of this cause prevent or obstruct the said Eleanor Toogood from attending' this court in support of her said Petition. And it is further ordered and ruled by the Court herewith consent of the parties that the Deposition of any Witnesses to be taken in this Cause either on the part of the Petitioner or Defendant before any Magistrate on giving ten Days Notice to the Adversarys Council shall be read in evidence on the Trial of the same cause and thereupon the said Cause is continued until next Court.

At which said next Court to wit the second Tuesday of October being the eighth day of the same Month Anno Domini 1782 comes again as well the said Eleanor Toogood by her Attorney aforesaId as the said Upton Scott by Thomas Jennings his attorney and the said Eleanor Toogood by her Attorney aforesaid admits that Ann Fisher and her Issue have been in a state of subjection ever since the judgment against her in Anne Arundel County Court in the year 1734. Whereupon all and singular the premises aforesaid and the allegations and evidence as well on the part of the said Eleanor Toogood as the said Upton Scott being by the court here seen heard and fully understood and mature deliberation thereupon had It is considered by the Judge here that the said Eleanor Toogood of and from any further servitude to the said Upton Scott be hence discharged and Freed. And it is also considered that the said Eleanor Toogood recover against the said Upton Scott the sum of One thousand three hundred and twenty four pounds of Tobacco by the Court here unto her on her assent adjudged for her Cost and charges by her laid out and expended by occasion of the premises {xx} Memor. Before the Judgment aforesaid was rendered the said Upton Scott by his Attorney aforesaid filed in court here the following Bill of Exceptions to wit:

Defendant's Bill of Exceptions

Eleanor Toogood vs Upton Scott, October Term 1782 Petition for Freedom

The Defendant proved in Evidence that the Petitioner Eleanor Toogood was the Daughter of a certain Ann Fisher and also produced in Evidence the following Judgment.

Summary of 1734 Judgment

In the Records and Proceedings of Anne Arundel County August term of 1734 is the following to wit. To the Worshipful the Justices of Ann Arundel County.. The petition of Ann Fisher humbly sheweth That your petitioners grand mother was a White Woman who served her time in St. Marys County who had your petitioner by an East India Indian who became a free Mullato after serving some time to Major Beale in St Marys County and after his decease came to John Beale Esq of this county where she now lives. That your Petitioner is now made a slave during her life which your petitioner humbly conceives is contrary to law. Your Petitioners cause tenderly considered your petitioner most humbly prays your Worships Opinion in the premises and your petitioner and is duty bound under shall ever pray to which petition being read and heard and the Allegations of both parties being heard and mature Deliberation thereupon had its adjudged by the Court that the Petitioner is a Slave during life by virtue of an Act of Assembly made in the year 1666 relating to Servants and of Slaves under which Act the Petitioners freedom and Slavery

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depends and find that it appears to the Court here by Depositions legally attended that the Petitioner's Mother was lawfully married by a Priest of the Romish Church one Mr. Robert Brooke to a Negro Man named Dick a Slave then belonging to Mr. Thomas Beale of St. Mary's County by which man the Petitioners Mother had the petitioner and several other Children after Marriage the Petitioner now being about thirty two years of age.

The County Seal In Testimony that the aforegoing is a true Copy from Liber IB No, {X} folio 83 I have hereunto set my Hand and affixed the Seal of Office this third day of September in the year 1782 Nic Harwood Clk

Which said Ann Fisher in the said Judgment mentioned was the Mother of the present Petitioner Eleanor Toogood . And the Defendant contended that the said Judgment was conclusive Evidence against the Petitioner and that she ought not to be permitted to give in Evidence any Thing in person that the said Anne Fisher was a free Woman at the time of the said Judgment rendered. But the Court were of Opinion and so determined that the said Judgment was only conclusive against the said Ann Fisher and was not conclusive evidence against the said Eleanor Toogood. A. C. Hanson. Seal.

And thereupon the said Upton Scott by his Attorney aforesaid prays an Appeal from the Judgment aforesaid so as aforesaid rendered to the States High Court of Appeals and the same is granted on giving Security according to Act of Assembly. Whereupon the said Upton Scott by his Attorney aforesaid files in court the following Appeal Bond.

Appeal Bond

Know all Men by these presents that we Upton Scott and Henry Ridgely of Anne Arundel County, Gentlemen are held and firmly bound unto Eleanor Toogood in the full and just sum of Two hundred Pounds current Money to be paid to the said Eleanor Toogood her Executors and Administrators to the which payment well and truly to be made and done and bind ourselves our Heirs Executors and Administrators jointly and severally firmly by those presents sealed with our seals and dated this 29th day of October Anno Domini seventeen hundred and eighty two. Whereas the above named Eleanor Toogood upon a Petition for Freedom obtained a Judgment of the General Court against the said Upton Scott that the said Eleanor Toogood is entitled to her Freedom and that the said Upton Scott discharge the said Eleanor Toogood from his Service and suffer her to go at large as a free Woman and pay to the said Eleanor Toogood the costs arising due on the petition aforesaid from which judgment the said Upton Scott hath appealed to the Court of Appeals. Now the Condition of the above obligation is such that if the said Upton Scott do and shall prosecute his said Appeal with the Effect and do and shall pay to the said Eleanor Toogood all such costs and damages as shall be to her adjudged by the Court of Appeals and do and shall discharge the said Eleanor Toogood from her service and suffer her to go at large as a free person if the Court of Appeals shall so determine and do and shall suffer the said Eleanor Toogood to attend the Court of Appeals whenever the Court sits and do and shall pay to the said Eleanor Toogood reasonable hire or wages and such as shall be adjudged by the said Court from the time of filing her petition aforesaid if the said Court of Appeals shall determine her to be free and do and shall until a full determination can be

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had in the premises treat and use the said Eleanor Toogood properly then the above obligation to be void otherwise to be of full force and virtue in Law.

Signed, Sealed and Delivered in the presence of Tho. Brooke Hodgkin.

U Scott, Seal H. Ridgely, Seal

It is therefore ordered that the record and Proceedings in the Premises aforesaid be transmitted to the High Court of Appeals accordingly. Test: Tho Hodgkin, Ck.

Copy of the Depositions taken and admitted as evidence on the hearing of the aforegoing cause together with Extracts from the will of Thomas Beale and John Beale's Inventory and Bill of Sale from Goldsmith to Ross, likewise admitted as evidence on the trial of the same cause are hereunto annexed.

In testimony that the aforegoing is a true copy from the Records of Proceedings of the General Court of the Western Shore of Maryland I have hereto set my hand and seal of the Said Court this 10th day of March Anno Domini 1783. Tho B. Hodgkin Ck.

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....Lands and Tenements for the use of the said Eleanor Toogood in case he the said Upton Scott shall at any time during the Continuation of this Cause prevent or obstruct the said Eleanor Toogood from attending this Court in support of her said Petition. And it is further Ordered and ruled by the Court here with Consent of the parties that the Depositions of any Witnesses to be taken in this Cause either on the part of this Petitioner or Defendant before any Magistrate on giving ten Days Notice to the Adversarys Council shall be read in Evidence on the Trial of the same Cause and thereupon the said Cause is continued until Court.

Ruling of Appeals Court

At which said next court to wit the second Tuesday of October being the eighth day of the same Month Anno Domini 1782 comes again as well the said Eleanor Toogood by her Attorney aforesaid as the said Upton Scott by Thomas Jennings his Attorney and the said Eleanor Toogood by her Attorney aforesaid admits that Ann Fisher and her Issue have been in a state of Subjection ever since the Judgment against her in Ann Arundel County Court in the year 1734. Whereupon all and singular the premises aforesaid and the Allegations and Evidence as well on the part of the said Eleanor Toogood as the said Upton Scott being by the Court here seen heard and fully understood and mature Deliberation thereupon had It is considered by the Judge here that the said Eleanor Toogood of and from any further servitude to the said Upton Scott be hence discharged and Freed. And it is also considered that the said Eleanor Toogood recover against the said Upton Scott the Sum of One thousand three hundred and twenty four pounds of Tobacco by the Court here unto her on her Assent adjudged for her Cost and Charges by her laid out and expended by occasion of the premises memor.

Bill of Exceptions

Before the Judgment aforesaid was rendered Upton Scott by his Attorney aforesaid filed in Court here the following Bill of Exceptions to wit.

Eleanor Toogood vs. Upton Scott October Term 1782 Petition for Freedom

The Defendant proved in Evidence that the Petitioner Eleanor Toogood was the Daughter of a certain Ann Fisher and also produced in Evidence the following Judgment.

1734 Court Ruling

In the Records and Proeedings of Ann Arundel County August Court 1734 is the following to wit. To the Worshipful the Justices of Ann Arundel County. The petition of Ann Fisher Humbly Sheweth That your Petitioners Grand Mother was a White Woman who served her time in St. Marys County who had your petitioner by an East India Indian who became a free Mullatoe after serving sometime to Major Beale in St. Mary's County afsd and after his decease came to John Beale Esq of this county where she now lives That your petitioner is now made a Slave during her Life which your petitioner humbly conceives is contrary to law. Yr. Petitioners case tenderly considered your petitioner most humbly prays your Worships Opinion in the premises and your petitioner as in duty bound shall ever pray.

Which Petition being read and heard and the Allegations of both parties being heard and mature Deliberation thereupon had its adjudged by the Court here that the Petitioner is a Slave during Life by virtue of an Act of Assembly made in the year 1666 relating to Servants and Slaves under which Act the Petitioners freedom or Slavery

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and for that it appears to the Court here by Depositions legally attested that the petitioners Mother was lawfully married by a Priest of the Romish Church one Mr. Robert Brooke to a Negroe Man named Dick a Slave then belonging to Mr. Thomas Beale of St. Mary's County by which Slave the Petitioners Mother had the petitioner and several other Children after Marriage the petitioner now being about thirty two years of Age.

In Testimony that the aforegoing is a true Copy from Liber JB No 5 folio 83 I have hereunto set my hand and affixed the Seal of Office this third day of September in the year of 1782. Nic Harwood Ck

Which said Ann Fisher in the said Judgment mentioned was the mother of the present Petitioner Eleanor Toogood. And the Defendant contended that the said Judgment was conclusive Evidence against the Petitioner and that she ought not to be permitted to give in Evidence any Thing to prove that the said Ann Fisher was a free Woman at the time of the said Judgment rendered But the Court were of opinion and so determined that the said Judgment was only conclusive against the said Ann Fisher and was not conclusive evidence against the said Eleanor Toogood. A. C. Hanson Seal.

And thereupon the said Upton Scott by his Attorney aforesaid prays an Appeal from the judgment aforesaid rendered to the States High Court of Appeals and the same is granted on giving Security according to Act of Assembly. Whereupon the said Upton Scott by his Attorney aforesaid files in Court the following Appeal Bond. viz.

Know all Men by these presents that We Upton Scott and Henry Ridgely of Ann Arundel County Gentlemen are held and firmly bound unto Eleanor Toogood in the full and just sum of Two Hundred Pounds Current Money to be paid to the said Eleanor Toogood her Executors or Administrators to the which payment well and truly to be made and done. We bind ourselves our Heirs Executors and Administrators jointly and severally firmly by those presents sealed with our Seals and dated this 29th day of October Anno Domini seventeen hundred and eighty two. Whereas the above named Eleanor Toogood upon a petition for Freedom obtained a Judgment of the General Court against the said Upton Scott that the said Eleanor Toogood is entitled to her Freedom and that the said Upton Scott discharge the said Eleanor Toogood from his Service and suffer her to go at large as a free Woman and pay to the said Eleanor Toogood the costs arising due on the petition aforesaid from which judgment the said Upton Scott hath appealed to the Court of Appeals. Now the Condition of the above obligation is such that if the said Upton Scott do and shall prosecute his said Appeal with Effect and do and shall pay to the said Eleanor Toogood all such Costs and Damages as shall be to her adjudged by the Court of Appeals and do and shall discharge the said Eleanor Toogood from her service and suffer her to go at large as a free person if the Court of Appeals shall so determine and do and shall suffer the said Eleanor Toogood to attend the Court of Appeals whenever the same sits and do and shall pay to the said Eleanor Toogood reasonable Hire or Wages as such or shall be adjudged by the said Court from the time of filing her petition aforesaid if the said Court of Appeals shall determine her to be free and do and shall until a full determination can be

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had in the premises treat and use the said Eleanor Toogood properly then the said above obligation to be void otherwise to be of full force and virtue in Law.

Signed Sealed and Delivered in the presence of

• Thomas Brooke Hodgkin
• U Scott (Seal)
• H Ridgely (Seal)

It is therefore ordered that the Record and Proceedings in the Premises aforesaid be transmitted to the High Court of Appeals accordingly. Test: Tho. B. Hodgkin Ck

Copy of the Depositions of the Witnesses taken and admitted as Evidence on the hearing of the aforegoing cause together with Extracts from the Will of Thomas Beale and John Beale's Inventory and Bill of Sale from Goldsmith to Ross likewise admitted as evidence on the Trial of the same cause are hereunto annexed.

In Testimony that the aforegoing is a true Copy from the Records of Proceedings of the General Court of the Western Shore of Maryland I have hereto set my hand and Seal of the said Court this 10th day of March Anno Domini 1783. Tho B. Hodgkin Ck.

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Deposition of John Thackrell

The Deposition of John Thackrell of Ann Arundel County age sixty years or thereabout being first sworn on the holy Evangel of Almighty God deposeth and saith That he knew Mary Fisher when he was a Boy she lived at a Quarter belonging to old Mr. beale near Annapolis was a Mulatto and ever since he can remember deemed and reputed to be Free, lived as a free woman and was treated as such, never heard or understood she was a Slave. This Deponents Father was overseer for old Mr. Beale eleven Years and he had heard his Father say he had nothing to do with her (Mary Fisher) she could go where she pleased and come when she pleased for she was a free woman. This Deponent further saith that his Father lived at a place near Annapolis now in possession of Colonel Weems who intermarried with Miss Mary Dorsey and in the neighborhood of Annapolis until he died. That he has heard his Sister Mary Sheilas (who is seventy years or seventy eight years old say that the said Mary Fisher was always Free ever since she knew her. This Deponent further saith that Mary Fisher had several children, Robin, Jack, Jenny, Dick, Charles and ann and one or two more Daughters, one he is sure, can't recollect her name, she married Tobias Hale. This Deponent further saith that Mary Fisher cohabited with a Mulatto Man who lived with old Mr. Beale but does not know whether they were married or not and further this Deponent saith not. Sworn to before A L. Hanson Oct 9th 1782. ^[5]

Deposition of Eleanor Hall

The Deposition of Eleanor Hall being of full Age and first sworn on the holoy Evangel of Almighty God deposeth and saith that when she was a very small Girl she remembered Mary Fisher a whiteish mulatto woman who lived at that time at a place belonging to Thomas John Hammond near her father Richard Dorsey's Plantation That said Mary was xxxx woman and payed for as a Free Woman and kept company with a white man of the name of Patterning as she understood, that she doth not know how she came to be free, that she know Annie Fisher her reported Daughter who dyed a few Months past and always understood that she was in a State of Slavery or subjection: that she petitioned more than once for her freedom as she hath heard but did not get free. And further this Deponent saith not. Eleanor Hall.

Taken before: mother of subscriber one of the Justices for Ann Arundel County this 24th day of October 18782. Nich. Worthington.

First Deposition of Mrs. Ann Beall

The Deposition of Mrs. Ann Beall who deposeth and saith That she has heard Mrs. Hanna Norwood say that Mary Fisher was the Mother of Ann Fisher Petitioner but

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whether for her own or her childrens Freedom she does not remember. What she has heard Mr. Norwood xxx that it was proved that Mary Fisher the mother of Ann Fisher was married to a Negro slave. That she knows Eleanor Toogood and that she always payed for the Daughter of Ann Fisher

That she understood that Ann Fisher lived and died in a state of slavery. That she does not know whether Eleanor Toogood or any other of the petitioners was purchased as slaves but has understood that Eleanor Toogood lived in a State of Slavery, that she knows nothing of the age of the said Eleanor nor any other of the Petitioners. That she has heard Mrs. Norwood say that a Mrs. Baker came from St. Mary's County and proved that she saw Mary Fisher the mother of Ann Fisher married to a Negroe slave. That she does not know nor never heard from any Person any other thing or matter relative to the present Petitioner for Freedom.

Sworn to this 19th October 1782 Before Sam Harrison.

Second Deposition of Mrs. Ann Beall

The Deposition of Mrs. Ann Beall who Deposeth and saith That she knew Mary Fisher the mother of Ann Fisher and that she lived as a free Woman. That she has heard Mrs. Hannah Norwood say that Mary Fisher lived in the family of a Mr. Beale and that she served her time as a servant and was treated as free by old Mr. Beale. That Mary Fisher was a mulatto and that she cohabited with James Demming a White Man. That Mary Fisher has six Children that she knew, viz Dick Charles Jenny, Robin, Jack and Ann, that Eleanor Toogood always paper and she understood her to be a Daughter Ann Fisher. That she does not know how long Mary Fisher has been dead nor how old she was when she died. That Mary Fisher lived on a Plantation of Mr. Hammonds near Annapolis. Sworn to this 19th October 1782 Before Sam Harrison.

Deposition of Francis Rawlings

Francis Rawlings of Ann Arundel County aged 63 years or thereabouts being first sworn on the holy Evangels of Almighty God deposeth and saith that he remebers the Negroe Woman named Nell in the possession of Doctor Scott near fifty Years ago and that she was always held in slavery during that time by the late John Ross and the said Doctor Scott. And further saith not. Sworn to in open Court this 210th October 1782. Jack Jps Hodgkin Ct.

Deposition of William Goldsmith

William Goldsmith of the City of Annapolis aged 40 years or thereabouts being first sworn on the holy Evangels of Almighty God disposeth and saith that he knew Hannah Norwood that she was a very ancient Woman and died about three years ago. Sworn to in open Court this 20th October 1782. Jac. Jos Hodgkin Ct.

Extracts from Will of James Beale

Extracts taken from the Will of James Beale the 17th of March 1612/13 and proved Mary 25th 1713. I give and bequeath to Richard Goldsmth one Negroe Girl named Ann and if the said Richard dyes before he comes to age than the said Negroe to Vachel Denton. I give and bequath to Thomas Jennings one Negroe named Frances and the Negro boy Robin. In Testimony that the foregoing is a true Extracts from the records of the late Prerogative Office the seal thereof is hereunto fixed this 25 day of February 1712. Thomas Gassaway, Keeper of the Records.

Extract from Inventory of John Beale

Extract taken from the Inventory of John Beale dated the 30 day of August 1734 and proven the 10th of February 1734.

• To Mulatto Slave called Jack subject fo fitts 30.0.0
• To a Negroe Man called Robin 36.0.0
• To a Negroe Woman called Hagar and Young child 31.0.0
• Negroe Woman called Marera and child 36.0.0
• Negroe Girl called Possway about 10 years 19.0.0
• Negroe Girl called Sarah at 1 years 16.0.0
• Negroe Girl called Comfort about 1 years subject to Fitts 12.0.0.
• Negroe Boy called Don about 4 years 8.0.0
• Mallatoe Slave called Mole about 13 years 29.0.0
• Mallatoe called Frank about 6t years 10.0.0
• 1 Mallatoe Boy called Nedab 11 years 21.0.0

In testimony that the foregoing is a true Extract from the Records of the late Prerogative Office the Seal thereof is hereto affixed this 25 day of February 1783. Thomas Gassaway Keeper of Records

Bill of Sale Goldsmith to Ross

Maryland. Know all men by these presents that I Richard Goldsmith of Ann Arundel County Gent. for and in consideration of the sum of Eighteen Pounds Current Money to me in hand paid by John Ross Esquire of the County aforesaid the Receipt whereof I do hereby acknowledge have bargained and sold and by those presents do bargain and sale to the said John Ross one Mollatoe Girl called Nel to Have and to hold the said Mulatto Girl to the said John Ross his Esq.

And also assigns for the said Richard Goldsmith the aforesaid Mollatto Girl to the said John Ross his Esq, Admir and assigns from and against all manner of persons shall and will for ever hereafter warrant and Defend by those presents In Witness whereof I have hereunto set my hand and seal this 22 day of January Anno. Dom 1731/2. Sealed and Delivered in Presence of William Cumming. James Simmons. True Copie, Test Thos. B. Hodgkin cT. Signed Richard Goldsmith, Seal.

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Coved Page Eleanor Toogood vs Upton Scott -- Record

Court of Appeals May Term 1782. Upton Scott Appeal Judgment Affirmed Eleanor Toogood Signed Th. Harris, Ian Clifbaggls

Disposition

DISPOSITION: Affirmed.

COUNSEL: J. T. Chase, for the petitioner.

Hall, Jenings and Stone, for the defendant.

Stone, for the appellant

Contended, that the judgment against Ann Fisher was a bar to the petitioner, and cited 6 Co. 7. 2 Stra. 733. 960, 961. 21 Vin. 573. pl. 2. 584. pl. 3. Co. Litt. 122. b.

That if the judgment is not binding on Ann Fisher, it is not on the master. That the case is not distinguishable from that of a villein, and that it is of no consequence to say, they are free by nature, if there is a judgment in force against the ancestor. ^[4]

J. T. Chase, for the appellee

The question [**4] which arises on the bill of exceptions is, whether the judgment of Anne Arundel County Court, in 1734, on the petition of Ann Fisher, (the mother of Eleanor Toogood,) is conclusive.

The judgment against Anne Fisher, can be no bar to her children, for the children do not derive their right to freedom from the ancestor; they claim it paramount the ancestor. The ancestor is only the channel of communication, and only serves to ascertain the source.

All persons are free by nature. 1 Ruth. 475. 477, 478. 1 Black. Comm. 125. And he that holds another in slavery must show how he acquired his right, and by what means the vassal was deprived of the inestimable blessing of liberty.

Should it be contended, that in this country, where slavery is countenanced, that every black and every mulatto is presumed to be a slave, and that whereas that presumption is corroborated by the circumstance of his having been held as a slave, it is a valid and unquestionable title. That argument, although it should be deemed irrefutable, will not avail, because it has been undeniably established that Mary Fisher was free, and always wa=reputed to be a free woman and lived as such. The presumption [**5] then arising from the above circumstances being destroyed, it will be necessary for the appellant to have recourse to something else.

The judgment against Ann Fisher can be no bar to her issue, because they do not claim under her, and because also such a determination would involve this absurdity in it; that the judgment of the County Court, on a petition of the mother, would preclude the General Court from the exercise of their opinion on a petition preferred by the child, before the petition was filed in the County Court by the mother.

By the act of assembly of 1715, c. 44. 31. the General Court and the County Courts have concurrent jurisdictions in cases of petitions for freedom. "It shall be lawful for the Provincial and County Courts to hear and determine any complaints between masters and servants by way of petition."

Suppose the mother petitions to the County Court, and files her petition at August. The child petitions the General Court, and the petition is filed in May. The petitions are continued the first to November, and the other to October; the General Court determines the child to be free. Can this judgment be taken advantage of by the mother in the [**6] County Court, or might not the County Court, notwithstanding, give judgment that the mother was a slave. Then reverse the proposition, and suppose the mother petitions the General Court, and the child the County Court, could the child avail himself of that judgment.

Suppose again that A. holds the mother and B. the child; the mother petitions the General Court at May term against A., and has a judgment that she is free. The child petitions the General Court at October term, can the judgment in favour of the mother be given as conclusive evidence against B.? Or shall B. be allowed to produce testimony to show, that the child is a slave? Certainly the judgment in favour of the mother is not conclusive evidence, and is only admissible as testimony upon the principle that hearsay evidence is allowed to prove descents, marriages and pedigrees.

If the judgment against Ann Fisher should be adjudged conclusive evidence, and a bar to the issue, what would be the consequence? The issue might have a right without a remedy; for no person could bring a writ of error to reverse the judgment but Ann Fisher; and the child might be held in slavery, although she had the clearest right to freedom. [**7] The mother might refuse, neglect, or be prevailed on not to bring a writ of error, or the mother might die. No person can bring a writ of error to reverse a judgment who was not a party or privy to the record, or who was not injured by the judgment, and therefore to receive advantage by the reversal thereof. 2 Bac. Abr. 195. Heirs and executors may bring a writ of error. Eleanor Toogood is neither the party, the heir, nor executor, and therefore cannot bring a writ of error. If she were entitled to a writ of error, all the descendants of Ann Fisher must be equally entitled to bring one. And if all the descendants are entitled to writs of error, they will have a right to give other testimony than that which was produced on the trial below.

Against whom must the writ of error be brought? Against Mr. Beale? or against his executor? They are both dead. A writ of error lies against none but parties or privies to the first judgment, their heirs, executors or administrators. 2 Bac. Abr. 195.

If the descendants of Ann Fisher were considered as heirs or executors, they could not have been such during the life of Ann Fisher, and as long as she lived they could not have reversed the [**8] judgment, but must have remained in slavery. If a judgment be given against the parson, the patron cannot have a writ of error. One to whom no right descends from the person against whom the judgment is rendered, cannot have a writ of error. 2 Bac. Abr. 195. 3 Lev. 36.

For these reasons the judgment of the court below, that the judgment of the County Court, against Ann Fisher, was not conclusive evidence against Eleanor Toogood, her child, must be esteemed a proper and legal decision, and the exceptions be disallowed.

After discussing the point on the bill of exceptions, three questions arise.

1. Whether the act of 1663, c. 30. extends to free mulattoes and their issue.

2. Whether there is any or sufficient proof, that Mary Fisher, the mother of Ann Fisher, was married to a slave during the existence of the act of 1663.

3. Admitting there was sufficient proof of such marriage during the act of 1663, whether, as Ann Fisher was born twenty-one years and upwards after the repealing act of 1681, she can possibly be a slave?

The preamble of the act of 1663, sets forth, that, "forasmuch as divers free-born English women, forgetful of their free condition, and [**9] to the disgrace of our nation, do intermarry with negro slaves, &c. for deterring such free-born women from such shameful matches, Be it enacted, that whatsoever free-born woman shall inter-marry with any slave, from and after the last day of this present assembly, shall serve the master of such slave, during the life of her husband; and that all the issue of such free-born women, so married, shall be slaves, as their fathers were."

The act of 1681, c. 4. repeals the act of 1663, and declares it to be "utterly repealed and made void: Provided, that all matters and things relating, in the said act, to the marriage of negroes with free-born women, and their issue, are firm and valid, according to the true intent and purport of the said act, until the present time of the repeal thereof."

In expounding a statute, all the parts of it are to be taken into consideration, the mischief that existed before the statute passed, and what things were intended to be remedied by it. 19 Vin. Abr. (Statute,) 514. pl. 34. When a statute commences with a particular enumeration, no other thing shall be taken by equity. 19 Vin. Abr. 514. pl. 34. Acts general in words have been construed to be [**10] but particular where the intent was particular. 19 Vin. Abr. 517. pl. 66.

Not only the words of statutes are to be considered, but rather the intent of the matter is to be weighed; for many times things which are within the words of the statute are not within the purview of them, which extends no further than the intention of the makers, the particular thing to be considered. 19 Vin. Abr. 518. pl. 81. The intention is to be collected from the cause and necessity of making it, and the construction should be consonant to reason and discretion. 19 Vin. Abr. 519. note to pl. 81. General words may be qualified by subsequent clauses or sentences in the same statute. Pl. C. 205.

The act of 1663 is highly penal and rigorous, if not inhuman. And it is principle of common law, that statutes penal be expounded strictly and not extended by equity to prejudice those against whom the penalty is inflicted; but general words shall be restrained and abridged for the benefit of him against whom the penalty is inflicted. 19 Vin. Abr. 521. pl. 95. note, pl. 96. Pl. C. 17. b. Every penal statute which goes in derogation of common right is taken strictly. 19 Vin. Abr. 521. pl. 96. The preamble [**11] is a key to open the minds of the makers, and the mischiefs they intend to remedy. 19 Vin. Abr. 521. pl. 100. Co. Litt. 79. a. Although the words of an act are general, they ought to be specially construed to avoid an apparent injury. 19 Vin. Abr. 524. pl. 119. 141. 154. 156. 158.

Unless the words such free-born women, in the enacting clause of the act of 1663, are construed such free-born English women, the word such (which is a relative term, and a word of great use and signification) will be rendered useless, insignificant and void. And it is a known rule in the interpretation of statutes, that such a sense is to be made upon the whole, that no clause, sentence or word shall prove superfluous, insignificant or void, if by any other construction they may be made useful and pertinent. 19 Vin. Abr. 528. pl. 160.

As to the second question. It is necessary for the appellant to show that the marriage was had during the continuance of the act of 1663, otherwise there is no pretence for holding the petitioner in slavery. It is admitted that Mary Fisher was married to a negro slave, but it is denied that the marriage took place during the existence of the act of 1663.

The [**12] record proof in the cause between Ann Fisher and John Beale, is not admissible as evidence in this case, only upon the principle that hearsay and reputation is evidence to prove a marriage. The present parties being different, the depositions or proof taken in that case, cannot be received as evidence, but on that ground.

A deposition cannot be given in evidence against any person not a party to the suit; and the reason is, that he has not liberty to cross-examine the witness. Theo. Evid. 18. 30. Gilb. Evid. 35. 62, 63. A person that has no prejudice by a verdict, can never give it in evidence. Gilb. Evid. 35. This rule admits of exceptions: as in the case of customs and tolls, and, in general, in all cases where hearsay and reputation are evidence. Theo. Evid. 30. 20.

A man shall not regularly take advantage of a deposition, who was not a party to the suit; for as he cannot be prejudiced, he shall receive no advantage from it. Theo. Evid. 31.

The judgment of the Court is not evidence but of the facts stated to have been proved. The verdict of a Jury (between different parties) is only their deduction from a variety of facts, and shall not be given in evidence, but where [**13] a fact is stated in a verdict; as for example, John had a son named Thomas, which fact would be evidence in all cases where hearsay and reputation are admissible. Theo. Evid. 20, 21. So in this case, the facts set forth in the judgment of the Court are evidence, because hearsay and reputation are admissible. The judgment of the Court is not evidence, because it is nothing but a deduction from facts. The depositions themselves are of higher credit than the facts stated by the Court, because they are nothing more than the deductions of the Court from the depositions, and a remove from the best evidence. If the depositions were produced, the facts would appear, and this Court could judge of them; and without derogating from the County Court, 1734, the Court of Appeals are better judges of the law arising on the depositions.

Nothing can be supplied by intendment or inference. It does not appear when the marriage took place, and the Court cannot conclude that it was during the existence of the act of 1663.

The record was said to resemble a special verdict. If the similitude is just, it can be of no use to the appellant; for if the Jury state facts in a special verdict, and then [**14] draw a conclusion as to the law from those facts, the Court will not regard the conclusion, but determine the law from the facts. 11 Rep. 10. 5 Bac. Abr. 289. Gilb. Evid. 185, 186. If the Jury find a deed in hoec verba, and conclude that the substance is so and so; if there is any difference, the Court will not regard the conclusion, but determine on the deed. Vaug. 17.

If the County Court, in 1734, had only given a judgment, without stating the proof, that judgment could not have been given in evidence. Theo. Evid. 20, 21. And suppose the judgment against Ann Fisher could be admitted as evidence, it cannot avail the appellants, because the Court, having set forth the proofs, and given the reasons and grounds of their judgment, though it was not necessary, and they not being sufficient to warrant the judgment, it cannot have any influence on the determination of this Court.

The judgment against Ann Fisher cannot have more weight or influence against the appellee than it would have against Ann Fisher, if it was to be revised on an appeal. Suppose it was removed here on an appeal, how would the Court determine whether the judgment ought to be affirmed or reversed? Certainly, [**15] upon nothing but the evidence or proofs in the cause; but the judgment can be no evidence, because it is the judgment that is complained of.

As to the third question. Where one statute is repealed by another, acts done in the mean time shall stand; but not if a statute is declared null. 19 Vin. Abr. 532. pl. 3. Jenk. 233. pl. 6. The act of 1681 repeals and makes void the act of 1663, with a proviso confirming and validating all mesne acts to the time of the repeal. The issue born subsequent to the repeal must be free, and Ann Fisher was born 22 years after.

As soon as the act of 1663 was repealed, its operation ceased; and although Mary Fisher would continue to be a servant during the life of her husband, yet her issue born after the repeal could not be slaves, because they did not descend from a slave, Mary then being only a servant for a limited time, and the act which would have made them slaves, having been repealed twenty years and upwards; and Ann was put in the same situation as she would have been if the act had never been made.

Slaves are either born such, or become so. They are born slaves when they are the children of bondwomen, or become so by their own consent. [**16] Ann Fisher is not the child of a bondwoman or a slave, nor did she ever consent to be a slave. ^[4]

Jenings, for the appellant.

The record of the County Court is to be considered in the light of traditional evidence, and is equal to hearsay. The point on the exception is a preparatory one. Whereever the law draws a consequence to the issue, from a particular fact found against the father, the issue is bound. If it is shown that the ancestor was a slave, the issue must be considered so also, unless something posterior has happened to extricate the issue. A fact found against the ancestor will affect the issue in its consequences: so the judgment against Ann Fisher must affect her issue. The fact stated by the Court in that record is evidence, but not the best evidence. An extract from a patent is evidence, if the opposite party has had sufficient time to have recourse to the record. Where a verdict is brought up by writ of error, the judgment below is in the nature of a verdict. Ann Fisher could not have controverted the facts stated in the record, if she had appealed. Suppose the case of a bond given by six or seven jointly and severally, living in several counties, the judgment against [**17] one will be a bar. So where there are several partners, dispersed in several counties, judgment against one will be a bar as to the others.

According to the law of nature, all goods in common, and negroes, are considered in the nature of chattels; whatever is the condition of the ancestor, such must be the condition of the child. Ann Fisher, then a slave, by the judgment of the Court, and her issue must be slaves, unless you can show something posterior by which they were emancipated. To reverse the judgment of the County Court, a petition of review should be brought; but then the petitioner would not be allowed to give other evidence than that on which the former judgment had been given, unless of something which happened subsequent to the judgment. The bill of review must state all the facts. The doctrine that evidence afterwards discovered should be heard, is pregnant with mischief.

The action of ejectment is attended with circumstances peculiar to itself, and therefore a judgment in one ejectment, is no bar to another ejectment. Where it appears there was no trial on the merits of the cause, the judgment is not a bar. If the fact of the time when the marriage took place [**18] had not been proved on the trial, it would not have been positive, and then the Court would not have asserted it as a fact. If, in case of a dispute about the property of negroes, it is not sufficient to prove the mother to be a slave, there will soon be an end to that kind of property.

The act of 1681 confirmed the marriages between 1664 and 1681, and the consequences of those marriages. Who are to maintain the children born after the repealing law, if they are not slaves? ^[4]

J. T. Chase, for the appellee.

The master being obliged to maintain the children born after the repealing law, is a proper punishment to him for suffering the ancestor to marry.

The determination in the case of Butler v. Boarman, (September term, 1770,) a is to govern; if not, much confusion and inconvenience will be introduced.

See Mar. Rep. vol. 1. p. 371.

Where there is a devise of a negro woman for life, with a devise over, and issue is born during the life-estate, it belongs to the first devisee. If it were otherwise, the devise would be an injury, and not a benefit. Suppose the determination mentioned should be overruled, how many individuals would suffer by it. ^[4]

Opinion

At May term, 1783, the Court of Appeals affirmed the judgment of the General Court.

The Court of Appeals were of opinion, that the judgment against Ann Fisher, was no bar to Eleanor Toogood, the appellee.

The Court were also of opinion, that the weight of evidence was in favour of the appellee.

The Court were also unanimously of opinion, that the act of 1664 does not extend to Mary Fisher , who appeared, by the proof, to have been a free mulatto woman.

The Court were also of opinion, that it appeared by the evidence, that Mary Fisher was free during the life of Dick .

These opinions were taken from the notes of the honourable J. T. Chase . ^[4]

Sources

1. ↑ Fisher, 1734 Petition
2. ↑ ^{2.0 2.1 2.2 2.3} Anne Arundel County Judgment Records 1703-1766 Anne Arundel County Judgments, 1743-1744, found in Paul Heineg. Free African Americans of Virginia, North Carolna, South Carolina, Maryland and Delaware Anne Arundel County Judgments 1743-1744, Liber IB, no.4, 14 June 1743, pp. 11-12.
3. ↑ Court Slave Records, 17 June 1743
4. ↑ ^{4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8} Eleanor Toogood v. Upton Scott. (UML REF RQST -- 1743 Fisher Case). Text of Final Opinion. Transcribged by Benjamin Royden Henry, University of Maryland Library, July 15, 2022. Research of Nancy Smith.
5. ↑ Thackrell, Deposition, 510

General Reference

University of North Carolina at Greensboro: Digital Library on American Slavery. Race and Slavery Petitions. Petition 20978291 Eleanor Toogood's Petition for Freedom

Bibliography of Frequently Cited Works

Anne Arundel Court, August 1734. Judgment Against Ann Fisher" Records Liber J.B.W, folio 831. Certified as Evidence by Defendant in 1782 Petition for Freedom. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0506, page 506 Accessed 18 January 2023.

Beale, James. James Beale, Will, 17 March 1612/13 - May 25 1713. Extract in Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0511, page 511 Accessed 18 January 2023.

Beale, John, Estate: Inventory 1734. Extract in Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0511, page 511 Accessed 18 January 2023.

Beall, Mrs. Ann. First Deposition, 19 October, 1782. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0510, page 510-511 Accessed 18 January 2023.

Beall, Mrs. Ann. Second Deposition, 19 October, 1782. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0510, page 510-511 Accessed 18 January 2023.

Brown, Thomas F., and Leah C. Sims. To Swear Him Free"-- Ethnic Memory as Social Capital in Eighteenth Century Freedom Petitions p. 81-97 iln Debra Myers & Melanie Perrault, editors, Colonial Chesapeake: New Perspectives. Lanham, Maryland: Lexington Books, 2006. Page 96 Accessed 27 February, 2015 jhd </ref>

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Goldsmith, William. Deposition, 20 October 1782. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0510, page 510-511 Accessed 18 January 2023.

Hall, Eleanor. 'Deposition, October 24, 1782. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0510, page 510 Accessed 18 January 2023.

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Rawlings, Francis. Deposition, 10th October, 1782. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0511, page 511 Accessed 18 January 2023.

Schweninger, Loren. Race, Slavery and Free Blacks: Petitions to Maryland. (MSC SC 4239) Compiled from Schweninger Collection in Maryland State Archives. msc_sc_4239_m11015-0501 Accessed 18 January 2023.

Scott, Upton, by his attorney. Bill of Exceptions to the Lower Court Ruling. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0508, page 508 Accessed 18 January 2023. . Thackrell, John. 'Deposition, October 9, 1782. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0510, page 510 Accessed 18 January 2023.

Toogood, Eleanor. Petition for Freedom. Toogood v. Scott, Maryland Court of Appeals 25 February 1783. Compiled by Lamar Schweninger from Maryland State Archives records for Race, Slavery and Free Black Petitions to Maryland. msa_sc_4239_m11015-0501, page 501-512 Accessed 18 January 2023.