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the courts in all the colonies were equally bound to take notice, in the same manner as the courts of the several states are now bound to take notice of any regulation of the general government;, and what the courts of the colonies were bound to take notice, judicially, we must still be presumed to know, if not as matter of law, at least as matter of history. We must, therefore, presume that slavery is tolerated in Delaware, inasmuch as that was the case before the revolution. The presumption of slavery, which attaches to the plaintiff, is not destroyed by proof of his removal from that state.
3 Hall v. Mullin. June T. 1821. 5 Har. & Johns. Rep. 190. The condi Benjamin Hall, by his will manumitted his slave Basil. It slaves does appeared, however, that Basil was upwards of 45 years of age not depend and therefore incapable of being emancipated. Afterwards, upon the Henry L. Hall, the son of the testator, sold to Basil bis slave civil or fudal law. Dolly Mullin, and who was the daughter of Basil, who then eman
cipated her; and Henry L. Hall bequeathed property to her, both real and personal. The defendant entered upon this property, and this action of trespass was brought.
It was contended, that Basil, not being manumitted, could not bestow freedom on Dolly Mullin, and that she was not capable of taking by the devise.
Per Cur. Johnson, J., It has been contended, on the part of the appellant, that the condition of slaves in this state is regulated by the civil law; and that as by that law slaves could purchase property only for the sole use and benefit of their masters, that, therefore, the bill of sale of Dolly to Basil, the right to Dolly passed out of Hall, and became immediately vested in the then owners of Basil, who were the general representatives of Benjamin Hall. On the part of the appellee it is urged, that the slaves in this state are similar to villeins in England, when villeinage existed in that country; and that, as in that country, when a villein purchased property, it did not pass immediately by or through him to his lord, but remained in the villein until the lord entered on, or took possession of the property; any disposition made of such property, before the entry was made, or possession taken, was valid. Cooper's Justinian, 107. Litt. $ 177.*
* Before the conquest there were villeins in Great Britain. 1 Hume's Hist. qf. England, p 181. A villein might be by prescription or confession in a court of record. Co. Litt. 117. B. The last confession of villeinage is in 19 Hen. 6. (1441.) Lott.
As it appears by the civil law, the property never abides for one instant in the slave, if the rights of Dolly Mullin, as derived from her father Basil, depend upon that law; as Basil was incapable to manumit, no claim on her part can rest on a deed of his execution. But should her rights rest on the feudal law, applicable to villeinage, then, as Basil never was disturbed in the possesssion of Dolly by any of the representatives of Benjamin Hall, or any other person, before or after the deed of manumission was executed, that deed would be competent to set her free, and, of course, renders her capable to take the land devised. But the condition and rights of slaves in this state depend exclusively, neither on the civil or feudal law, but may, perhaps, rest in part on both, subject, nevertheless, to such changes in their condition and capacity to contract as the laws of this state prescribe, and as contained in various acts of our state legislature. By the act of 1715. ch. 44. § 11., it was prohibited“ to trade, barter, commerce, or any way deal with any slave,” without the leave of the master. The contract between Henry L. Hall and Basil under this act was void.
WHO MAY BE HELD IN SLAVERY.
(A.) OF THE AFRICAN.
1. Negro MARY V. The Vestry of WillIAM AND MARY's Parish. Oct. T. 1796. 3 Har. & M.Hen. 501.
Negroes Petition for freedom. It was admitted the petitioner was de- imported scended from negro Mary, imported many years ago into this gascar may
be held as
slaves. 17.; and there were no villeins in gross in Great Britian in 1547, and the last case on villeinage is to be found in Dyer, 266. pl. 11. It was virtually abolished by the statute 12 Car. 2. ch. 24. These were some of the principles of villeinage: Villeinage descended to the issue when the father and mother were villeins. Co. Litt. § 181. But if a freeman married a neif, their issue was free. Co. Litt. 123. If a neif had a bastard, he was free. The issue followed the condition of the father. The children of a free woman becoming villeins, and of a neif becoming free, where a freeman married a neif. Co. Litt. § 185. Villeins were either regardent, that is, annexed to the land, or else they were in gross, and annexed to the person of the lord, and transferrable by deed from one to another, the same as any chattel, and they might be recovered as any other chattel.
country from Madagascar; and the question was, whether she was entitled to her freedom,
It was contended that Madagascar was not a place from which slaves were brought, and that the act of 1715 related only to slaves brought in the usual course of the trade. On the other side, it was contended, that the petty provinces of Madagascar make war upon each other for slaves and plunder; and they carry on the slave trade with Europeans,
Per, Cur, Madagascar being a country where the slave trade is practiced, and this being a country where it is tolerated, it is incumbent on the petitioner to show her ancestor was free in her own country to entitle her to freedom.
Hudgins v. Wright. Nov, T. 1806. i Hen. & Munf. Rep. 139.
Per Cur. The slavery of the African negro has existed from The Afri
the time of bringing them into the colony. In many of the states have been express enactments have been made declaring them slaves; and slaves from
in others they are slaves by custom. See the act of assembly of they were Maryland of 1663, commented upon, and explained in Butler v. to the colo- Craig, 2 Har. & M‘Henry's Rep. 214., and Butler v. Boardman, nies, either by statute
1 Har. & M'Hen. 371.; 2 Brevard's Dig. 229. ; Prince's Dig. or by cus- 446; Rev. Code of Mississipi, p. 369. ; 1 Rev. Code of Virginia,
421. ; Code of Louisiana, art. 138. ; 2. Litt. & Swi. 1149,
(B) OF INDIANS.
SEVILLE V, CHRETIEN. Sept. T. 1817. 5 Martin's Louisiana
Rep. 275. State v. VAN WAGGONER. 1 Hals. Rep. 374. Under the
Mathews, J., delivered the opinion of the court. The plaintiff, in Louisi. and appellant, sues, in forma pauperis, to recover his liberty and ana; some judgment having been given against him, he appealed. The evi, , were held dence, which is all written in the form of depositions and other in slavery, and the documents, comes up with the record, and a statement of the case freedom of is made by the counsel, not acqui The district judge having admitted all the testimony offered, we red by the establish- deem it useless to enter into a formal investigation and decision of Kennish the each exception, but will proceed to state the facts, as drawn from
the evidence which was properly received. A summary of such
of them as are necessary to arrive at proper legal conclusions, may be laid down as follows : In the year 1765 or 1766, Duchene, an Indian trader, brought an Indian woman to Opelousas, whom he sold to Chretien, the father of the defendant, and appellee. She died not long after, leaving a female child, who remained peaceably with Chretien, as his slave, until soine time during the period in which the Baron de Carondelet was governor of the province of Louisiana, when she went to New Orleans with her master, for the purpose of claiming her freedom before the proper tribunal, , It appears from a certificate of Peter Pedesclaux, a notary, that a suit was commenced, but no record remains, or can be found, of the manner in which it terminated. She returned with Chretien, and remained with him as his slave until his death, which happened after the United States took possession of the country under the treaty made with the French government in the year 1803. She was called Agnes, and brought forth several children while held in a state of slavery by Chretien, of whom the plaintiff, and appellant, is heir. After the death of the ancestor of the defendant, and the distribution of his estate, Agnes and some of her children, all descended from the Indian woman sold by Duchene, as above stated, brought suit in the parish court of St. Landry against their owners, among whom was the present defendant, to recover their freedom. From a judgment by default, which afterwards became final, an appeal was taken to the superior court of the late territory of Orleans, where the cause was tried by a jury, and a ver, dict rendered in favor of the then plaintiff, and appellee, which was set aside by the court, on account of some misconduct in the jury, and a new trial ordered. The case remained in this situation until the change in the country, from a territorial to a state government, and was then transferred with others to the fifth district under the new system. As the person who became judge of that district had been engaged as counsel in the cause, it was transferred for trial to the second district, and the then appellee, who was the original plaintiff, not appearing to prosecute his suit, was declared by the court to be non-suited, and judgment was accordingly entered, It appears from the depositions of a number of witnesses, (admitted by the parties to have been correctly taken, and to be proper evidence in the cause,) that at the time the Spanish government took possession of the country, viz. in 1769, under the secret treaty of cession made between France and Spain in 1763, many of the inhabitants of the colony, which had been established and set
tled under the authority of the French government, held and possessed Indians as slaves, and it seems to have been a belief pretty general among them that the practice of holding Indians in slavery was tolerated and authorized by that government. The fact that a considerable number of Indians and their descendants were held in slavery at the period alluded to, is clearly proven. These being all the important facts in the case, we will proceed to examine the plaintiff's, and appellant's, claim to freedom, on the ground taken by his counsel. It is grounded on a judgment of the parish court of St. Landry, as being res judicata, by a competent tribunal. But if it be determined that it be not conclusively supported and established by the judgment, it is contended that the plaintiff, and appellant, is free by birth, being the lineal descendant of an Indian woman. His counsel contends, that the decision of the cause must be according to the rules of the Spanish system of laws. According to these laws it is clear, that since the famous regulations of Charles V., made about the middle of the fifteenth century, Indians could not be reduced to slavery; and if the case was to be decided by them, he would certainly be entitled to his freedom. But on the other side, it is contended, that this court ought to be governed in the determination of this suit by the municipal laws and usages of France, by which her American colonies were ruled. On this previous question our opinion is in favor of the defendant, and appellee. It is true that the province of Louisiana was ceded by France to Spain, in 1763, by a secret treaty, but no effectual possession of the country was taken until the arrival of governor OʻReilly in 1769. Now, it is an incontrovertible principle of the law of nations, that in cases of the cession of any part of the dominions of one sovereign power to another, the inhabitants of the part ceded retain their ancient municipal regulations, until they are abrogated by some act of their new sovereign. In relation to the colony of Louisiana, nothing tending to repeal its former laws, such as they were under the French government, took place till the year 1769, and we have already seen that the Indian woman, the ancestor of the plaintiff, was brought into the country and sold as a slave in the year 1765 or 1766.
Slavery, notwithstanding all that may have been said and writ. ten against it, as being unjust, arbitrary, and contrary to the laws of human nature, we find in history, to have existed from the earliest ages of the world down to the present day. In investigating the rights of the parties now before the court, it is deemed unneces