thorizing the slavery of the blacks. The first act of the legislature of the province of Virginia on the subject of the slavery of the Indians, was passed in 1670, and one of its provisions, as we are informed by Judge Tucker, prohibits free or manumitted Indians from purchasing christian servants. The words free or manumitted are useless and absurd, if there did not exist Indians in slavery, and Indians who had been slaves, and had been manumitted before and at the time this act was passed. Indeed, from the history and legislative proceedings of the British colonies, both in the West India islands and in North America, it clearly appears, that in most, if not in all of them, the slavery of the Indians was tolerated by government in the early period of their settlement, without any specific legislation on that subject. The French government was later in establishing colonies in America than the British and Spanish. In our researches on the subject under consideration, we have not been able to discover any legislative act of it, by which the colonies were authorized to hold Indians in bondage, but that it was customary to purchase and hold some classes of them in slavery, cannot be doubted. This cannot have been without the permission, or at least the toleration of government. Moreau de St. Mery, speaking of the black population of St. Domingo, observes, that among it are the descendants of some Indians from Guiana, Louisiana, &c., whom government and individuals, in violation of the law of nature, deemed it profitable to reduce to slavery. 1 Hist. St. Dom. 67. In the beginning of the eighteenth century, he adds, there were upwards of three hundred Indian slaves, in the French part of St. Domingo. In 1730, the governor of Louisiana sent three hundred of the Natchez tribe to be sold. Several arrived after that period from Canada and Louisiana. Here we have historical facts establishing, beyond contradiction, the holding of Indians as slaves, in one of the French colonies, many of whom were transported from the very colony in which the ancestor of the plaintiff, and appellant, were held in bondage. Were it necessary to prove that they were legally held so, the evidence of it would be found in their being taxed as slaves, (2 St. Domingo Laws, 541.,) a circumstance which creates, at least, a very violent presumption that the municipal regulations of the French colonies did not prohibit the slavery of the Indians. This appears to have been the opinion of the Spanish government, which we have seen succeeded to the French in Louisiana. Governor O'Reilly, in 1769, on taking possession of the colony, but discovered that a considerable number of Indians were held in slavery by the French colonists. This he declared, by a proclamation, to be contrary to the wise and pious laws of Spain by the same instrument, he confirmed the inhabitants in the possession of such Indian slaves, until the pleasure of the king, in this respect, could be known. Here is then a recognition of the right of the possessors, to hold their Indians slaves, until the legislative will of the monarch should deprive them of it. This never did happen. In conformity with this opinion, is a decree of the Baron de Carondelet, twenty-five years after, in 1794, by which he orders two Indians, Alexis and David, to return to, and abide with their owners, uutil the royal will was expressed to the contrary. The inhabitants of the colony of Louisiana, while under the government and dominion of France, held Indians in slavery. The Spanish government, under which they passed, recognized their right to hold them, until it should be altered by a declaration of the king's will. It never was declared. The colony, without any change in the condition of the original population, is receded to the French nation, and by it transferred to the United States, under a treaty securing to its inhabitants their rights to property, as they stood under the former government. Throughout these political changes, the ancestor of the defendant, and appellee, remained undisturbed in his possession of the plaintiff, and appellant's mother, as his slave, and of him since his birth. It is true that, during the government of the Baron de Carondelet, the plaintiff's mother, as has been stated, made an attempt to obtain her freedom. What proceedings took place before that governor, whether any, or what judgment was rendered, cannot now be ascertained. The only thing clear is, that she returned with the defendant's father from New-Orleans, and remained with him as his slave until his death. This certainly raises a presumption, that the suit terminated in a manner unfavorable to her claim. If this is to have any weight on the determination of the present case, it must certainly be placed against the plaintiff. Upon the whole, we are of opinion, that neither from a view of political changes in the country, nor a fair examination of the subject, is the plaintiff, and appellant, entitled to his freedom. 3 2. of an Indian free. ULZIRE ET AL. V. POEY FARRE. May T. 1824. 14 Martin's Rep. 504. The issue Per Cur. Porter, J. This is an action in which the plaintiffs, woman is who aver that they are descended from Indians, now claim their freedom. The issue joined is liberi vel non. The cause was submitted to a jury, on special facts, who have found that the petitioners are descended from an Indian woman of the Chickasaw tribe; and that the defendant has shown no title to hold them as slaves. On this verdict, the duty of the court is very simple: if the defendant hold the plaintiffs in slavery without any title, he does so illegally, and they must be set free. Judgment affirmed. Indian could not. very, altho' was a slave try from came. 3. BUTT V. RACHEL ET AL. Feb. T. 1814. 4 Munf. Rep. 209. S. A native Suit for freedom. The plaintiffs claimed their freedom as being 4. HUDGINS V. WRIGHTS, Nov. T. 1806. 1 Hen. & Munf. 134. Indian been made a slave in The court held, that Indians had always been considered as No native free persons, in fact and in right. In the year 1679, the Virginia could have legislature passed an act, declaring Indian prisoners taken in war to be slaves; and in the year 1682, another act was passed, Virginia declaring that Indians sold to us by neighboring Indians, and others trading with us, should be slaves. But in the year 1691 these acts were repealed, and no Indian could be made a slave under the laws of Virginia since the latter period. And the General Court, in April T. 1777, decided that all American Indians brought into this country since the year 1705, and their descendants in the maternal line, are free. See JENKINS V. TOM. 1 Wash. Rep. 123. COLEMAN V. DICK. & PAT., 1 Wash. Rep. 239. 5. HUDGINS V. WRIGHTS, Nov. T. 1806. 1 Hen. & Munf. 134. since 1691. in their fa Held by the court, that the presumption was, that all Indians The pre introduced into the state, at any time, were prima facie presumed sumption to be free, or that, if the date of their introduction did not vor. appear, the prima facie presumption was, that they were American Indians, and brought in after the act of 1705, and therefore free. 6. HUDGINS V. WRIGHTS, Nov. T. 1806. 1 Hen. & Munf. 134. be rebut Held by the court, that if a female ancestor of a person assert- Which may ing a right to freedom, whose genealogy is traced back to such ted. ancestor through females only, be proved to have been an Indian, it seems incumbent on those who claim such person as a slave, to show that such ancestor, or some female from whom she descended, was brought into Virginia between the years 1679 and 1691, and under circumstances which, according to the laws then in force, created a right to hold her in slavery. Indians were held in New 7. GREGORY V. BOUGH, March T. 1831. 2 Leigh's Rep. 686. Per Green, J. I cannot for a moment doubt the propriety of the former decisions of this court, and of the instruction under consideration, that proof that a party is descended in the female line from an Indian woman, and especially a native American, without any thing more, is prima facie proof of his right to freedom-liable to be repelled by proof that his race has been immemoriably held in slavery; which may be in turn rebutted by the consideration of the ignorance and the helpless condition of persons in that situation, aided by other circumstances, such as that many such were bound by law to a service equivalent, in all respects, to a state of temporary slavery, until they attained the age of thirty-one years; and in many cases, (according to circumstances existing almost in every case,) for an uncertain term beyond that age. 8. STATE V. VAN WAGGONER. April T. 1797. 1 Halst. Rep. 374. On a habeas corpus for the body of Rose, an Indian woman, in slavery claimed by the defendant as a slave, it appeared that the mother Jersey. of Rose had been purchased as a slave, and had been held as such for 55 years. It was contended, that as the mother and daughter were confessedly Indians, it furnished prima facie evidence, at least, that they were free. On the other hand, it was contended, that the acts of the legislature of New Jersey, recognised Indians as slaves. March 11, 1713-14. Allison, p. 18. And the act of May 10, 1768; and also the act of 1769. And the same principles prevailed in Pennsylvania, 1 Dall. Rep. 167. Per Cur. Kinsey, Ch. J. The habeas corpus in this case seems to have been sued out under the supposition that an Indian could not be a slave under our laws. But this idea is contradicted by various acts of assembly, some of which have been cited on the argument; and, indeed, it cannot be urged with any show of reason. They have been so long recognised as slaves in our law, that it would be as great a violation of the rights of property to establish a contrary doctrine at the present day, as it would in the case of Africans; and as useless to investigate the manner in which they originally lost their freedom. |